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To my mother, who traveled a rough road so that I might have a smoother ride

As I write, Mumia Abu-Jamal is in his eighteenth year of solitaryconfinement on death row in Pennsylvania's State Correctional Institute.He was tried, convicted, and sentenced to death for the shootingmurder of Philadelphia police officer Daniel Faulkner. His appealshave all been rejected by the Pennsylvania state court system. Hislawyers are now engaged in a last attempt to overturn the convictionby bringing their case to Federal Court in Philadelphia.

The trial of this black journalist and activist has attracted worldwideattention. The thirty-eight members of the Congressional BlackCaucus have called for a new trial, as have several European governments,political figures such as the Reverend Jesse Jackson, labor unions,and ad hoc committees of writers, performers, and universityprofessors. The scrupulous human rights organization Amnesty Internationalhas described Mumia's trial as a travesty and listed him intheir registry as a political prisoner. There are so many issues ofdubious police behavior, judicial impropriety, and apparent prosecutorialmisconduct attached to this case as to have established aclear moral imperative to reconsider the entire basis of the case againstMumia. Yet the Philadelphia Brotherhood of Police, elements of thelocal press, and what appears to be the entire political establishmentof Pennsylvania is unrelenting in its insistence that he be executed asa proven cop killer.

Mumia Abu-Jamal was defended by a court-appointed lawyer whodid not wish to defend him and was unprepared to do so: Mumiawas denied the right to defend himself and excluded from the courtroomfor crucial portions of his trial; a jury was picked with blatantefforts to eliminate blacks from the panel; the pivotal prosecutionwitnesses, one a paroled offender, the other a prostitute with benchwarrants against her, and thus subject to police intimidation, offereddamning testimony at the trial that contradicted what they had saidthe night of the officer's death; second-thought testimony by a patrolofficer friend of the victim offered months after he made his originalstatement was admitted in evidence; a crucial defense witness, anotherpoliceman, was made unavailable for the trial; and the trajectory ofMumia's own bullet wound from Officer Faulkner's gun did not accordwith the prosecution's scenario of where he was standing whenhe and the police officer were supposed to have exchanged fire.

As a black radio journalist critical of the police and sympatheticto the beleaguered black MOVE communalists subsequently bombedout of their Philadelphia enclave, Mumia was not unknown to the legalestablishment. He had belonged to the Black Panther Party as ateenager, a fact duly recorded by law enforcement and used by theprosecution to represent that this man who had never been known tocommit an act of violence in his life was motivated to murder policemenby virtue of his radical beliefs. Two more contextual mattersmust be noted: that the trial judge, Albert Sabo, had sentenced moreconvicted defendants to death-most of them black men-than anyother judge in the country; and that there existed at that time in thePhiladelphia Police Department a culture of racist brutality and corruption,since documented by the district attorney's office, whichfound, among other lawless activities, the routine subornation of perjuryto secure conviction of defendants whom the police knew to beinnocent.

None of this, of course, is proof of Mumia's innocence. Yet itdoes suggest the need for careful examination of the trial and posttrialrecord in the presumption that a capital case above all othersmust be made with the most painstaking attention to the higheststandards of American law. I believe the present work by Daniel R.Williams, an attorney and a member of the defense team attemptingto win Mumia a new trial, offers both those who believe in Mumia'sinnocence, and those who are just as passionately convinced that heis guilty, the opportunity to test their beliefs against the thoroughaccount of the whole sad story, presented in these pages, beginningon that terrible December night in Philadelphia when, at 4:00 A.M.,a young and conscientious police officer was mercilessly gunned downin the street.

One would expect a defense attorney to tilt his story in his client'sfavor. While there is no doubt in Mr. Williams's mind that his clientis innocent, what he is concerned to show here is not one man'sinnocence of the charge against him, but, in all its details, the natureof a juridical event. The surprise here is how honest, how forthcoming,and at points how confessional this account is as it takes us step bystep through the original trial and the appellate procedures since then.We are shown once again the painful truth that the magisterial bodyof law central to our national identity can be brought to its knees bythe demon inadequacies of human character. All trials generate competingnarratives that are in many respects extra-legal. The case is madefrom evidence, yes, but also from interpretive ascription, the prevailingpolitics of the legal establishment, tabloid sociology, the jury's inferencesfrom courtroom behavior, and the performance powers of attorneys.Trials can be marred by stereotypical thinking; they can beshaped by the careerist self-interest of prosecutors and a defendant'slack of financial resources; they can fall prey to the intellectual insufficiencyof judges-they are vulnerable to every one of the monumentalnumber of failings of our human nature that regularly satirizethe idea of justice.

The thrust of Me. Williams's book is judicious. He can be ascritical of his client's courtroom conduct as he can of the behavior ofthe judge. He is as honest in his opinions of his colleagues at thedefense table as he is of the state's attorneys. He is as sensitive to theterrible years of pain and anguish suffered by the slain officer's familymembers as he is to a man's state of mind who has lived alone in acell under a death warrant for eighteen years.

During the course of those eighteen years the passions of Mumia'ssupporters and his detractors have only increased in intensity. On bothsides the rhetoric is enraged, the "paid-for" ads hyperbolic, the ralliesloud and defiant. The cause in the name of Mumia's innocence hasattracted organizations from the margins of American politics. Establishmentmedia derive from this fact the likelihood of his guilt; he isdiscredited by the people who support him, even as they are discreditedby whom they support. The cause in behalf of Mumia's guilt andthe need to execute him and bring closure to the case is spearheadedby the Philadelphia Brotherhood of Police, and has generated advertisingincome from police associations across the country. At neitherextreme can there be a legal certainty to match the righteousness. Ithas been difficult to articulate the unresolved prior issue, which is notthis defendant's innocence or guilt but whether the trial that put himon death row rose to the level of basic standards of American justice.

That is the issue this book addresses. I hope it will attract enoughhonest readers from both sides of the dispute, those who have nottaken the trouble before this to acquaint themselves with the legalities,the personalities, and the crucial turnings of the case. Even the bereavedfamily of the slain officer has to understand that unless a manis found guilty beyond a shadow of a doubt, there can be no trueclosure. And we all have to understand that every time a judge entersthe courtroom and calls for a capital case to be heard, the law as wellas the defendant is put on trial.

During the past ten years, Mumia Abu-Jamal has become the mostrecognized-dare I say, celebrated-death row inmate in the world.His incarceration on Pennsylvania's death row, since his conviction in1982 for the shooting death of a young Philadelphia police officer,has become a flashpoint for a revived and flourishing death penaltydebate in this country. The New York Times recently called him "thenew face of the death penalty debate." He is for many progressives,political radicals, and students worldwide something much more potent-a symbol of, among other things, a disturbing phenomenon:the metastasizing prison-industrial complex that reminds us that anomnipresent racial polarization still grips our society. Songs, poems,and stories have been written about, or have been inspired by, him.He has spawned sundry tabletop merchandise: tote bags, whistles, candles,mouse pads, T-shirts, compact discs, etc. He has become thelatest incarcerated cause celebre among the artistic, intellectual, andchattering classes in our media-crazed society. Some claim, with bothdelight and dismay, that he is a product of the burgeoning Internetthefirst Internet political prisoner.

No doubt Mumia has done much to attract attention to himself.He has done so, not by cheap theatrics but by the sheer force of hisintellect and his passion to speak for those who are largely ignored inthe tumult of our "wired" culture. He has written three heartfelt, andcritically well received, books. He has issued biting commentaries innumerous publications (including the Yale Law Journal, one of themost selective venues in academe). His trenchant oral recordings aboutliving a life on death row, awaiting state-sanctioned death, were approvedfor airing on National Public Radio, until outcry among lawenforcement groups and conservative politicians intimidated NPR intochanging its mind. Television programs, airing on such national venuesas HBO, the A&E Network, and ABC, have offered various analysesof the case.

The attention on Mumia's case will only intensify as it movesfurther down the corridors of the judicial system. Either he will beexecuted or he will be given a new trial. Either way, there will bemuch noise and clamor.

I am one of Mumia's attorneys, and I have been involved in thecase since 1992, a full decade after his conviction. When I agreed tojoin the defense team, at the request of my mentor and friend, LeonardWeinglass, I had no idea that Mumia's case would become whatit is today: a lightning rod of controversy amidst a broader controversythat is escalating (and will continue to escalate) over the use ofthe death penalty as a so-called "law and order" tool. Len and I, withthe aid of other lawyers, law students, and activists, have dissectedthe prosecution's case against this famed death row inmate to performa legal autopsy of sorts. We were not involved in the trial ororiginal appeal of Mumia's conviction. The case was over, as far asthe authorities in Pennsylvania were concerned, when we stepped ina decade after the trial to perform that autopsy-that is, to determinewhether Mumia's guilt and punishment had been appropriately andjustly adjudicated. What we found is laid bare in the pages thatfollow.

***

Cornel West, a leading public intellectual (a rare breed today), hasasserted without equivocation that Mumia is "unjustly imprisoned fora crime he did not commit." One can only be struck by the boldnessof those words from an academic not otherwise prone to politicalsloganeering. West's bold proclamation of Mumia's innocence may beamong the most audible, by virtue of his stature as a credible andrespected public intellectual, within a chorus of similar proclamationsby many other notables (such as Alice Walker, Ossie Davis, and AngelaDavis). But it is part of a chorus nonetheless.

There are others, however, who proclaim with equal adamancythat Mumia is a cop killer-and an unrepentant one at that. Theyhave the argumentative upper hand insofar as he has been found guiltyby a jury, a verdict twice upheld by the Pennsylvania Supreme Court.The strength of the anti-Mumia position rests on the presumption,which most Americans accept as akin to religious dogma, that ourjudicial system is the envy of the world. That presumption comesunder scrutiny in this book, but for the moment I wanr to say thatit would be unfair to dismiss those who seek Mumia's execution asevil persons who secretly desire the killing of an innocent man. Rightlyor wrongly, informed or not, those pushing for execution genuinelybelieve Mumia is a cop killer.

And then there are those in the middle: agnostics in what hasrapidly grown into a holy war. Actors Ed Asner, Mike Farrell, andAlec Baldwin are the most visible exemplifications of this position.Mumia may very well be guilty, the agnostics argue, but who is tosay? There has been no legitimately fair proceeding to adjudicate hisguilt. His trial was a travesty, a besmirchment and stain on "Americanjustice." He deserves a new trial.

Because I am a lawyer for the defendant, it would be expectedthat I would proclaim my client's innocence, and I do. But a lawyer'sproclamation of his client's innocence is understandably met withskepticism. The interesting question, to me, is not whether I or anylawyer or celebrity believes in Mumia's innocence. It is the proclamationitself that intrigues me. After all, people proclaim Mumia'sinnocence at the same time that they (rightly, in my view) denouncehis trial as a farce and demand a new one. But without a genuinelyfair trial where all of the evidence is presented and tested, what substanceis there to a proclamation of innocence-or of guilt, for thatmatter?

Cornel West's assertion, like the assertions by others, that Mumiais innocent of the shooting death of a police officer back in December1981, it seems to me, reflects both an ideological stance and an expressionof faith. It is an ideological stance insofar as those who arewilling to embrace Mumia as a factually innocent man are, by andlarge, persons with a certain (but not necessarily homogenous) politicaloutlook who view Mumia's case as part of a larger ideological struggle.It is an expression of faith, at its core, because it derives from thebelief that a man as articulate, as compassionate, as committed asMumia is to the lost and forgotten souls in the world cannot be guiltyof a cold-blooded murder. It is an assertion that seemingly precludeseven the notion that life and human beings are complicated enoughto allow that Mumia's guilt can coexist with his sincere and deeplycommitted allegiance to social justice.

The agnostics in this jihad over Mumia's fate add a sobering message:we who believe in Mumia's innocence can only insist upon aprocess that allows for our faith to be tested. If it can be proven thatMumia has not been accorded a trial process that inspires confidencein the jury's verdict, then the pro-Mumia forces will have the moralauthority to insist that those who seek his execution be equally courageousand put their faith in that same crucible of adversarial testing-a crucible we conventionally call a fair trial. Remember: it is thecrucible itself, and not what we put in it, that expresses most fullyour societal values.

***

In the end, it seems to me that the polar extremes shouting ateach other in this raging battle speak from deep reservoirs of pain,anger, and fear. The widow of the slain officer understandably insiststhat the original jury verdict in 1982 should be respected andcarried out, as she no doubt needs to believe that it conclusivelyresolved the issues relating to her husband's untimely and violentdeath. It is worth taking a moment to reflect on her pain, and to besensitive to how the intensity of interest in Mumia's case must hurther, as well as the other family members and friends of the slain officer.Convictions assuage the hurt of crime victims and those close to them.Ambiguities, unresolved crimes, however, act as anticoagulants, interferingwith the healing of open psychological and emotional wounds.People who find themes of "law and order" more compelling thancalls for social justice have their own fears, born of insecurities thattheir values and hard-earned possessions are threatened by those whohave different visions of what is socially and economically possible inAmerica. Those fears find expression in angry calls for harsh punishmentand state-sponsored killing; the venom of "Let Mumia Fry" mustbe understood as anger concealing fear. The eye-opening truth is thatAmerica is filled to the brim with such fearful people. Just listen tothe anti-crime, pro-death penalty rhetoric of politicians. I defYanyoneto demonstrate that political discourse on crime and punishment, especiallydiscourse on the death penalty, is anything but histrionic,demagogic, and fear driven.

Those who proclaim Mumia's innocence, many of whom aremembers of historically oppressed groups or are politically allied withsuch groups, also speak from pain found deep in the wells of theirexperiences. Cornel West, Alice Walker, and other progressive intellectualsand writers rightly admire Mumia for his ability to draw suchgroups and people together. He is able to do this in part because ofhis enormous vocal and literary gifts. But he builds bridges and forgesbonds among people from within death row primarily because hiswritings are dedicated to the pains and sufferings of the strugglingpoor and dispossessed who are ever-increasingly becoming downtroddenin this world of escalating stock values and Internet millionaires.The struggle waged on Mumia's behalf, though on the surfaceprompted by strong feelings that his trial was unfair or that he isinnocent, is perhaps more profound than most other struggles wagedfor the unjustly convicted. This is true, in my estimation, because thisstruggle to "Free Mumia" seemingly allows for the ventilation of thepain and suffering of the struggling poor and dispossessed-the voiceless,as Mumia's supporters would say.

It is precisely this-Mumia's heartfelt allegiance to social justice,genuine human connectedness, and fundamental morality-that callsattention to something more intriguing in West's proclamation ofinnocence. He makes it in the context of praising Mumia as a manwith an intact, evolved, and flourishing soul living in a place thathuman beings have constructed to starve and ultimately destroy thesoul. Mumia is a voice, West observes, that forces us to confront thedemons immanent within "our capitalist 'civilization' [which] is killingour minds, bodies and souls in the name of the American Dream."What is intriguing is that Mumia, with his indestructible soul, representsthe dark side of the American Dream for those who look tohim as a symbol in the struggle for political and social justice, just ashe is such for those who want him dead. That's the ambiguity ofMumia Abu-Jamal.

Ah, ambiguity. West's proclamation begs the question: is Mumia'sstature as a writer, the "truth" of his message, unworthy of attentionif he is guilty of firing a bullet into the brain of a young police officer?Does guilt for such an act necessarily muffle this voice for social justice?Or can such a guilty man nonetheless still speak to us, clearlyand credibly? Indeed, even if his guilt somehow justifies extinguishinghis right to remain alive, does it extinguish the worth of his message?In short, does Mumia's worthiness as a voice for the voiceless dependupon his innocence? If so, why?

These are questions that no one, so far as I can tell, bothers toask. So the answers lie hidden somewhere in the universe, probablyto be discovered when historical distance permits greater objectivity.In a narrow, legalistic sense, these questions are irrelevant to the arduoustask that I and others have before us in our quest to win Mumiaa new trial. But it is fair to consider, given that Mumia's case confrontsthe inscrutable connection between life and death, what Mumia's predicamentmight say to us about our human existence. I wrote thisbook in that spirit.

To assert in any case that a man must be absolutely cut off fromsociety because he is absolutely evil amounts to saying that societyis absolutely good, and no one in his right mind will believethis today.

-- ALBERT CAMUS

ONE: GOOD VERSUS EVIL

Once again, the venom of hatred anddisdain for the law enforcement professionhas vented its ugly anger on one ofPhiladelphia's finest.

-- STATEMENT BY THE PHILADELPHIACHAPTER OF THE FRATERNALORDER OF POLICE, DECEMBER 9, 1981

1. THE KILLING

A body in a blue police uniform lay still on the sidewalk. Afew feet away, slouched on the curb near the front bumper ofa parked car, was a black man with dreadlocks, bleeding with a gunshotwound to his chest, his right arm stretched across his torso, hislegs protruding into the street but lazily bent at the knees, his wholebody listless. An empty .38 revolver with a two-inch muzzle was justbeyond his reach to his left. The body in the blue uniform had belongedto twenty-five-year-old police officer Daniel Faulkner, or justplain Danny, as his friends and family knew him.

Earlier that morning, on December 9, 1981, a minute or two shyof 4:00 A.M., someone fired a bullet into Officer Faulkner, strikinghim between the eyes as he lay helpless on the cold pavement. Forsome, the crime never was a mystery. The twenty-seven-year-olddreadlocked black man, Mumia Abu-Jamal, found at the crime scenewearing a gun holster and sitting on the curb within inches of thealleged mutder weapon, was not simply an obvious suspect; he seemedto be the only one who could have committed the crime. But forothers who knew the young and talented journalist, the de factospokesperson for Philadelphia's disenfranchised minorities, it was incomprehensiblethat Mumia-that is what most people called him,just Mumia-would even be capable of perpetrating such a monstrousact. The crime was more than just a murder mystery; it was an opportunityto silence the man people had begun to dub the voice ofthe voiceless.

***

Thirteenth and Locust Street was, at the time of this crime, partof Philadelphia's red-light district, a neighborhood that came aliveafter midnight with prostitutes, lost souls, and nighttime carousers. At3:54 A.M., patrol car 612, with its twirling red dome light, was parkedat a curb on Locust Street about a quarter of a block east of theThirteenth Street intersection. An old beat-up blue Volkswagen, licenseplate dangling, was parked at the curb in front of the police car,in full view of Officer Faulkner as he sat peering through the windshield,the hand-held police radio up near his mouth. Two cars on acity street, one suggesting disorderliness situated in front of anotherthat spoke bluntly of "law and order." By the looks of it, OfficerFaulkner was in the midst of an ordinary traffic stop.

The central dispatcher heard Officer Faulkner's routine notificationover the police radio-"This is patrol six-twelve. I have a carstopped at Twelfth, uh, Thirteenth and Locust" -and dutifully putout the call for a backup. Officer Faulkner was about to step out whenhe looked around to gauge what risks were involved. He didn't havea partner cruising patrol with him, so he was particularly cautiousabout his actions. Something-it is unclear what-told him that abackup unit was not enough. He contacted central dispatch again.

Officer Faulkner, tall with dark hair and eyes and a slap-your-backfriendly disposition, was five years into his work as a Philadelphiapolice officer. He had joined the force after a brief stint in the armyupon graduating high school. He left his modest row house in theEastwick section of southwest Philadelphia to begin his night shift at11:30 P.M., after having spent some time at his dining room tablepaying bills. His house was in the midst of renovations and the billswere mounting. Money was tight, but he and his young wife, Maureen,didn't have any children-not yet, at least. Mauteen knew thatwhen they did, Danny would be a good father. She could tell by theway he loved to play baseball with the neighborhood kids during thesummer. But why rush? They were still young and happy to enjoy lifealone together for a while. They had a ski trip lined up for afterChristmas, and a cruise to Bermuda in the spring.

One of seven children born into a working-class family, Faulknerwas going to celebrate his twenty-sixth birthday on December 21,twelve days away. He was planning on taking the detectives exam overthe upcoming weekend and was confident he would score well. Heseemed to have a knack for police exams and had a penchant fordiscipline. He was proud of the fact that he had finished second inhis class at the police academy. He was also intent on finishing upthe last few credits for his associates degree at Philadelphia CommunityCollege. It wouldn't be exactly right to say that Danny Faulknerwas ambitious. His life had always been lived on a small canvas. It'sjust that he was committed to making the most of it. Maureen lovedthat about him.

It was approaching 4:00 A.M., and Officer Faulkner spoke intothe radio for the last time. He usually wore a bulletproof vest underneathhis perfectly pressed uniform, but Maureen noticed that hehadn't put it on that night. Strange, she thought momentarily, beforefalling asleep. "On second thought, send me a wagon at Thirteenthand Locust," Faulkner muttered quickly. The request for a "wagon"meant he was intent on making an arrest, and he didn't want to bealone-not at this hour of the night, and not in this part of town.

Officer Faulkner stepped out of the patrol car, scanned the areaagain, and put his hat on. No one would have faulted him ifhe hadn'tput his hat on. Many, maybe even most, Philadelphia patrol officers,deep into their night shift, dispense with the formality. But not OfficerFaulkner. He insisted on the hat, just as much as he insisted on polishedshoes and a pressed uniform.

Danny Faulkner had less than two minutes left in his life. Soonhe would be lying face up on that cold, dingy pavement, lifeless, witha bullet in his brain.

***

It didn't take long for Locust Street to be bristling with activity.The night had been punctured with short, crackling, violent bursts ofsound. Those who heard the crisp explosions-was it four, maybe fivejolts of sound? bystanders just couldn't seem to remember-knewinstantly it was gunfire. Homicide detectives, crime scene investigators,patrol officers, police photographers, curious onlookers, and severalwitnesses to various aspects of the "incident," hovered around thebloodstained asphalt. The dead police officer, found lying on the sidewalk,was immediately taken away to nearby Jefferson University Hospital,with the hope that somehow he could be revived. It wasn't untilall the commotion died down that someone picked up Faulkner's hatfrom the street. The hat, unlike everything else, was still in perfectcondition-and it remained so for a jury to see seven months later.

Mumia Abu-Jamal, too, was taken to Jefferson University Hospital,but not before, according to court witnesses, his head wasrammed into a light pole and his body kicked and punched by infuriatedpolice officers summoned to the scene. Mumia could neverhave guessed that the evening would devolve into this. He had hadan enjoyable dinner with friends, among them a journalism colleagueand a local politician, before getting into his cab to earn some badlyneeded money. His journalism career was at a crossroads, and he wasmoonlighting as a cab driver to support himself and his wife andchildren while trying to reassert-perhaps rediscover-his identity asa journalist. Some reporters on the city hall beat had been whisperingthat Mumia's marriage was on the skids and that he had begun tolose his objectivity as a reporter. But now, his entire life was derailed,as he lay on the hospital bed, handcuffed to the railing, looking upat his older sister, Lydia.

Mumia had refused medical treatment when the police, as theyput it, "deposited" him on the emergency room floor. When familymembers appeared at the hospital, they urged him to accept treatmentwhile trying, amidst the bedlam, to grasp what had happened. Mumiafinally agreed. Emergency room surgeons operated for two and a halfhours to repair damage caused by a bullet later discovered to havebeen discharged from Officer Faulkner's police-issued revolver. Thepolice simply "knew" that Mumia had shot the officer. But how hadMumia been shot? None of the witnesses on the scene could say.

The question of how Mumia had been shot-at what point duringthe few seconds of the incident-would be a mystery that wouldplague the entire case, and in the end, may hold the key to his exoneration.

Lydia was with him when the anesthesia wore off. Mumia motionedfor her to come nearer. His voice had always bespoken hisstrength, even in childhood; bur now it was only a whisper. Comenearer, he gestured again. "I didn't have anything to do with it. I'minnocent." Lydia nodded and squeezed his hand.

Maureen never had a chance to exchange whispered words withher husband at the Jefferson emergency room. Danny Faulkner waspronounced dead at about 5:00 A.M., bur in reality, he died instantlyonce the bullet struck him between the eyes, penetrated his skull, andthen obliterated his brain.

The new mayor, William J. Green III, and other city dignitarieswould come to the hospital later in the morning, designated by theCommonwealth to vent the city's anger over a senseless attack on thatthin blue line that separates law from disorder. They would joinDanny Faulkner's young widow at the hospital as she attempted tograsp what had happened.

The president of Lodge No.5 of the Fraternal Order of Policequickly issued a statement: "Once again, the venom of hatred anddisdain for the law enforcement profession has vented its ugly angeron one of Philadelphia's finest." Mayor Green ordered the city tolower flags at half-staff for thirty days, as "Philly's finest" wore blackribbons on their badges. Faulkner was the second cop killed in theline of duty that year. More than five thousand people, including themayor and virtually every municipal leader, turned out for the memorialservice at St. Barnabas Roman Catholic Church in southwestPhiladelphia. Even the voluble and controversial ex-mayor, FrankRizzo, appeared, but remained uncharacteristically silent in the face ofnews cameras and a phalanx of journalists beckoning him to give oneof his trademark invectives.

Danny was supposed to go deer hunting the day he was buried,a friend of his reflected, eyes moistened with emotion as the twohundred cars in the motorcade passed by.

For the next seven months, the killing of Officer Daniel Faulkner,and the life and times of the presumed killer, would be fixtures in thelocal papers and television news broadcasts. There would be muchhand-wringing over how it could be that a gifted journalist, a passionatespokesperson for the poor, with no criminal past and areputation as a gentle man, could find himself accused of such a viciousmurder.

In racially polarized Philadelphia in 1981, a black man with dreadlockswas immediately looked upon as an enemy of the police. Philadelphiawas the home of the radical MOVE organization, a groupevoking bemusement among many, but vitriol among police officerswho still remembered a killing of one of their own in a police siegeupon a MOVE compound in 1978. Mumia had been raising eyebrowsfor the past three years among journalism colleagues, the public, andthe police, because of his outspoken support for MOVE members,whom he felt were the latest victims of police brutality in a city thatMayor Rizzo had nourished with police-state methods. Mumia hadnever kept to himself his affinity for MOVE's spiritually based back-to-nature tenets. It was obvious to the arriving police officers, evenbefore an investigation was launched, that Mumia had vented his rage,which was MOVE's rage, against authority by mercilessly killing OfficerDaniel Faulkner.

There would be a trial. But for the police that night, a trial wasnothing more than an unpleasant detour on the way to extracting theultimate revenge for this malicious cop-killing. Executing justice wasall that remained.

Mumia Abu-Jamal was indicted for the shooting death of P.O.Daniel Faulkner, and arraigned within a week of the crime onthe charge of murder in the first degree (along with a weapons possessioncount) from his hospital bed, where he was recuperating fromthe gunshot wound received from the slain officer's revolver. With noclear idea how Mumia was shot, investigators would endeavor to developa theory to explain it. By the time of the arraignment, thePhiladelphia court system had appointed Anthony Jackson, a solocriminal defense practitioner, to represent the "indigent defendant."

If Jackson thought that this high-profile murder case would be acareer maker for him, he couldn't have been more wrong. Prosecutingthe case was Assistant District Attorney Joseph McGill, an experienced,aggressive and highly skilled prosecuror who knew how to bringback death verdicts. He was one of District Attorney Ed Rendell'sgolden boys in the office. Furthermore, Jackson's every decision andjudgment would be second-guessed by the legion of supporters forMumia who attended every court session. He would have to chart adifficult course to get the case ready for trial, and he would have todo so with very little money. He was court-appointed, so he wasbeholden to the penny-pinching Philadelphia criminal justice systemfor the funds necessary to defend his client. fu if that were not enough,the trial would take place in Courtroom 253-the well-known waystation to Pennsylvania's death row. Judge Albert F. Sabo, a smallminded,mean-spirited judge, but a darling of the prosecutors, wouldpreside over yet another death penalty trial.

This, however, was not going to be an ordinary criminal trial.

It began in early June 1982 and ended on July 3, with a decisionby a jury of twelve to "impose death." The prosecurion presented four"eyewitnesses" who, with their testimony packaged together, provideda straightforward account of what happened on the night of the killing.Officer Faulkner had made a rourine traffic stop; the Volkswagendriven by Billy Cook, Mumia's brother, apparently had turned towardoncoming traffic on a one-way street. Cook walked toward the fronthood of the patrol car and words were exchanged. Faulkner then attemptedto put handcuffs on him, when Cook suddenly struck theofficer in the face. In response, Faulkner pulled out his heavy-dutyflashlight and hit Cook in the head. During this scuilie, a manlaunched into a run from across the street toward the scene. No onehas ever disputed that the man who ran across Locust Street towardFaulkner and Cook was Mumia Abu-Jamal.

The entire dispute in the trial centered upon what happened inthe next few seconds. According to the prosecution, the man runningacross the street brandished a gun and fired into the back of OfficerFaulkner at close range. The wounded officer staggered from the curbto the middle of the sidewalk. Faulkner then fell to the ground as theshooter hovered over him, the revolver pointing downward. After firingseveral shots, Mumia Abu-Jamal trudged over to the curb, nearthe front bumper of the Volkswagen, and sat down. Within a fewminutes, police officers arrived on the scene and found Mumiaslouched on the curb, and the supposed murder weapon, with fiveempty shells, lying nearby.

The prosecution had more than just eyewitness testimony pointingto Mumia's guilt. It also had two witnesses who claimed that heshouted out a profanity-laden confession. And as for the gun foundwithin inches of Mumia's reach, the prosecution couldn't definitivelyprove that it had fired the bullet retrieved from the slain officer's brain;but it did claim that the ballistics analysis strongly indicated that itwas the murder weapon.

It was an impressive case. The evidence needed to be answered.

***

CYNTHIA WHITE'S STORY

Cynthia White was standing on the corner of Locust and ThirteenthStreet. She had been working the streets that night, one of severalblack prostitutes congregating on Locust. As the time approached4:00 A.M., and the bars and nightclubs prepared to close, White expectedthat a new spate of customers would soon bargain for herservices. She saw the patrol car parked behind the Volkswagen, butdidn't pay it any attention. A patrol car in the neighborhood was nobig deal to Cynthia White.

The police were always a heavy presence in this part of Philadelphia,and they were a fixture in the lives of Philadelphia prostitutes.A federal investigation would later expose a sophisticated network ofpolice corruption, involving high-ranking cops enmeshed in a schemeto extort money from prostitutes, pimps, and bar owners. White hadalways had a good relationship with the cops-a good relationship, infact, was essential to her business. Of course, she had no way of knowing,as she advertised herself in the cold, that she was about to becomethe key witness in one of the most explosive murder cases in Philadelphiahistory.

On June 21,1982, Cynthia White sat in a witness chair in Courtroom253, located in historic city hall, a majestic century-old buildingin the heart of Philadelphia, with a statue of William Penn situatedatop a slender dome on the roof. The courtroom itself gestured at themajesty of the law, with its high ceilings, oak trimmings, and FrenchRenaissance-style decor. In the natural light of the courtroom, Whitelooked older than her twenty-four years-more depleted than haggard.Because she rarely smiled when not working, her face sagged, givingher a wearied appearance. As she squirmed a bit in her seat, she puther hands on the inside of her thighs and jutted her shoulders forwardas she waited for the prosecutor to get on with it. She looked smallon the witness stand. In fact, she was a small woman without her highheels.

The jurors stared at her, struggling to hear her whispered answers.''I'm going to ask you to speak very loudly," McGill directed as hepointed toward the microphone. He wanted the jury to hear what shehad to say-every word of it.

Mumia sat at the defense table as White sat poised to bury himwith her testimony. When she first sat down in the witness chair, shewas anxious to get the whole thing over with. But as she descendeddeeper into her story, she became more at ease. At ease not so muchfrom enjoyment but apparently from that unique thrill, for the timebeing at least, of feeling important.

Joe McGill was going to make his case with Cynthia White.Slowly and deliberately. Important testimony in a death penalty trialmust be drawn out slowly and deliberately. Slowly and deliberately,because important facts must be nurtured. They must be displayed,then absorbed by the mind, and then woven into a story that evokesa web of feelings. The men and women on the jury would have aweighty decision at the end of this trial. They would have to decidewhether Mumia should walk again among the free or become, throughdeliberate state action, an inert mass of human flesh returned to theearth. McGill understood well that facts were not enough. Therewould have to be that web of feelings pulsating inside these jurors tocountenance another killing. Transforming facts into feelings is a slowand deliberate process.

White claimed she saw Officer Faulkner pull the Volkswagen tothe curb, emerge from his vehicle, and then walk toward the driver'ssidewindow. The driver stepped out before he arrived, and the twowalked back toward the police car and then up onto the sidewalk,talking or arguing along the way. Shortly after they reached the sidewalk,White told the jury, the man suddenly struck Officer Faulkner"with a closed fist to the cheek."

Faulkner whirled the man around. White explained that the officerthen pulled back the assailant's arm as if to place him in handcuffs.She was quite familiar with handcuffing, having been arrested aboutthirty-eight times, according to official documentation; probably more,in reality. She claimed not to see Officer Faulkner unleash an assaultof his own in retaliation. That was an odd omission on her part. Fewthings arouse more anger than an audacious act of violence directedat a police officer.

McGill asked White to step down and demonstrate what she wasdescribing. The request was, strictly speaking, unnecessary because herverbal description was perfectly clear. But necessity is a relative notion:he wanted the scene to be replayed again so the "facts" could beabsorbed by the jury this time through their eyes, not just their ears.

White stepped down from the box and moved toward the well ofthe courtroom. Her initial nervousness had withered away completelyby now. The jury watched the show, for that is what it was, by prosecutorialdesign, as she demonstrated how Faulkner pulled the driver'shands behind his back, wrists crossing, when the latter whirled aroundto hit the officer.

"Now, Miss White, when did you first see the man running acrossthe street? At what point?"

White paused, as if to re-create the scene in her head. Her lipsjutted out, not quite pursed, giving the impression she was reachingback into her memory for the truth. Consciously or not, she waseffective in conveying credibility. "When the police had the driver ina position to handcuff him, that's when the man came running,"White explained.

Before Mumia had caught Cynthia White's eye, he had been inthe driver's seat of his own cab, anticipating another fare from amongthe many patrons of the numerous night spots nearby. From his cabsituated in a parking lot across the street from where Officer Faulknerwas struggling with the driver of the Volkswagen, he noticed the redturret light atop the patrol car. He then saw the Volkswagen, and hisbody stiffened. In one motion he opened the door and glided out ofthe cab. He looked again just to be sure. Yes, it was his brother'sVolkswagen. Was that his brother with the cop, or was it his brother'sbusiness partner, Ken Freeman, a frequent passenger in the Volkswagen?He strode briskly through the commercial lot and reached thestreet. He didn't notice Cynthia White, and he had no cause to. Hisattention was on the cop and the other man. He then broke into arun. Yes, it was his brother, Billy Cook. And his brother was bleeding.

White claimed that Mumia went from a walk to a run about midwayacross Locust Street. She claimed to have noticed that he was brandishinga gun. Mumia fired rwice at the officer's back at point-blankrange, White insisted under friendly questioning. "Come down again,"McGill summoned, "and show us once more what it is you saw."

McGill knew that White's testimony on this point would be critical-perhaps the most critical in the whole trial. He asked her todemonstrate what happened in that moment just before the officer hitthe ground, not for show but to hammer in a point that he neededthe jury to accept. Somehow, White explained, Officer Faulkner spunhimself around to face Mumia and began to fall to the pavement.White was certain that the officer was grabbing for something as hewas falling. McGill looked over at his jury. He felt, as a good triallawyer ought to feel, that this was his jury, and his jury was payingattention.

What was it that Faulkner was grabbing for? White couldn't say."Will you demonstrate to the jury, Miss White, when you said thepolice officer fell and you said he grabbed something? ... Stand here.You don't have to fall all the way. Just, you know, give us a generalidea how it happened."

White complied, twisting around and leaning back as if to fall tothe ground.

The prosecutor would never get White to say that the officer hadsucceeded in pulling out his gun. But he felt he had enough fromWhite's account to resolve the nagging mystery of how Mumia re-ceived his near-fatal gunshot wound to the chest. He theorized thatOfficer Faulkner managed to fire his service revolver once, strikingMumia in the chest, as he was falling to the sidewalk. What Whitehad observed, McGill would later suggest to the jury, was OfficerFaulkner reaching for his service revolver. McGill again asked her todemonstrate in front of the jury box.

"He came over and he stood on top of him .... He came overand was doing like this here with the gun."

Wounded, Mumia allegedly stood over the terrified young manand emptied his revolver. White stood in front of the jury, with herright arm outstretched and her hand positioned like a simulated gun.She jerked her hand back three times, simulating the recoil of a firearm,as she told the jury that Mumia "was doing like this here withthe gun."

She stood for a moment, waiting for the director to give her thenext cue to the performance, but the prosecutor just pointed towardthe witness chair. She walked back to her seat and crossed her legs,waiting for the next question.

"Would you point him out, Miss White?" Her right hand waspressed against her lip, her elbow on her knee, when she suddenlythrust her index finger toward Mumia, her arm rigid for several seconds."Any doubt in your mind, Miss White?" The abrupt finger stabalready revealed the answer, but she verbalized one anyway. Viewingthe scene from about three car lengths away, White was sure that itwas the defendant, now seated at a table some twenty feet away, whokilled the officer.

White then explained to the jury that, after the shooting, Mumiahad stumbled over to the curb and sat down. And indeed, when policearrived at the scene, less than two minutes thereafter, they saw Mumiaslumped on the curb near the front bumper of the Volkswagen, hischin bobbing slightly on his heaving chest.

As far as the prosecutor was concerned, Cynthia White was all theprosecution needed to make out its case against the defendant.

***

ROBERT CHOBERT'S STORY

McGill, of course, was delighted that he had more eyewitness testimony,as it is a mistake to take anything for granted in a jury trial.He called to the stand a cabdriver who saw the shooting from withinhis cab moments after discharging a passenger onto the sidewalk onthe southeast corner of Locust and Thirteenth Street. Robert Chobert,a troubled twenty-two-year-old white man serving out a probationarysentence for committing arson for pay at a school, was logging his lastfare in his notebook when he heard a single shot.

"I looked up, 1 saw the cop fall to the ground, and then 1 sawJamal standing over him and firing some more shots into him." Chobertwas the kind of witness a trial lawyer loves. No ambiguities, justa straightforward answer.

He had the look of a youthful beer drinker, pale with dull eyesand unruly hair, all of which suggested he didn't welcome conversationfrom strangers. Something about the way he tightened his face whenprompted to talk gave the impression that he just wasn't into smalltalk. When he entered the courtroom to testify, it looked as if he weregoing to break into a run down the aisle and jump over the railing.As he walked between the prosecution and defense tables, he shot aquick glance over at Anthony Jackson, perhaps already thinking aboutthe inevitable cross-examination.

He had been staying at a local hotel, for his own protection,according to the detective who was sitting next to the prosecutor inthe courtroom. Chobert didn't seem to mind it, so long as he wasn'tpaying the bill. He thought it was all kind of ridiculous, putting himin a hotel for a couple of weeks. He couldn't imagine that his life wasin danger because he was a witness in this case. After all, it wasn't amob hit. Chobert figured that the MOVE organization-the blackradical group that had taken root in Philadelphia-might be involvedin some way, but the MOVE members seemed to be too hung up on"the system" to be bothered with him.

McGill wanted to break the scene down into little snippets. So heasked Chobert to explain exactly what he saw when he looked upfrom his notepad. "I saw the officer fall," Chobert explained, with theterse precision that pleased the prosecutor.

"And then, tell us again, what did you see happen?"

"I saw him shoot again several more times."

"Now, what then did you see the shooter do?"

"Then I saw him walking back about ten feet and he just fell bythe curb." No running, no fleeing, just walking the few feet to thecurb-the curb where Mumia was ultimately found.

Hadn't he told the police that the shooter "ran away?" Jacksonwould press later on in his cross-examination. That was a "mistake,"Chobert responded. Jackson had little ammunition with which to attackChobert's retreat from his initial police statement. Chobert hadindeed told investigators at the crime scene that the shooter "ranaway," but he also claimed that the police apprehended him. Now,on the witness stand, Chobert insisted that the shooter never ran atall, but only traversed the few feet to the curb, thus mapping thetestimony of Cynthia White.

McGill didn't even attempt to get Chobert to explain how Mumiahad been shot. He evidently knew from the prep sessions that Chobertcouldn't say, despite his claim that he watched, uninterrupted, theevents unfold between the shooter and Officer Faulkner. After theshooting ended, but before the police arrived, Chobert stepped our ofhis cab and walked toward the body on the sidewalk. Jackson neverseized on the puzzling aspect of this testimony. If Chobert walkedtoward the slain officer, then doesn't that indicate the shooter hadfled the scene? Isn't that what Chobert, in essence, told the police thatnight-that the shooter "ran away"? Does it make sense that Chobertwould walk in the direction of the crime scene, seconds after a manhad just brutally executed a police officer, if that executioner remainedthere, as he was now suggesting?

The arriving police ordered him back to his cab. They soon cameback to him after they had whisked Officer Faulkner away and hadthrown Mumia into the police van.

Like White, Chobert gave a statement to interviewing detectivesat the scene, describing what he had seen and the physical attributesof the shooter. Homicide detectives, figuring that a cab driver's onthe-scene identification would be more solid-less impeachable, in theargot of litigators-than that of a prostitute, escorted him to the policevan where Mumia lay. Chobert knew that the man sitting on the curbwas now in the police van because he had seen the police put himthere.

"And then what?" the prosecutor prompted the witness.

"They took me over to the wagon, like I said, and they asked me, 'Isthat the guy?' I said, 'Yes, it is.' " He identified Mumia as the shooter.

"Do you recall telling the police the type of hair that the shooterhad?"

Chobert nodded and it looked as if he were going to crack a smile,but he caught himself. "Yeah, he had long matted hair ... like aMOVE member."

Jackson tried to shake Chobert from his certainty that Mumia wasthe one. The attack only caused Chobert to harden as a witness. "Iknow who shot the cop, and I ain't never gonna forget it." You'resure? the defense attorney asked again. "Pretty damn right I am."

The prosecution was in good shape with Chobert's on-the-sceneidentification. Although Chobert couldn't provide the seamless narrativethat White offered the jury-especially in his inability to accountfor Mumia's gunshot wound-he took the sting out of the factthat White's credibility could always be questioned by virtue of howshe made her living. Chobert also corroborated a key aspect of White'saccount: he, too, told the jury that he had seen the shooter stumbleover to the curb at the front of the Volkswagen after firing pointblankat the fallen officer. Regardless of how Chobert and White mayhave described the shooter-and their descriptions differed berweenthem and did not match Mumia's physical attributes-the fact thatthey both claimed to see the shooter finally situate himself in the veryplace that the police found Mumia less than rwo minutes later waspowerful enough to substantiate that Mumia was the killer. Chobert'son-the-scene identification of Mumia in the police van was just icingon the cake.

***

MICHAEL SCANLAN AND ALBERT MAGILTON

Two other eyewitnesses were called by the prosecution. While neithercould definitively say who was the shooter, their observations stronglysuggested that the shooter was the man who had run across LocustStreet. Since there was no dispute that that man was Mumia, Scanlanand Magilton, as far as McGill was concerned, further corroboratedthe theory that Mumia was the shooter.

Scanlan, a young well-dressed white man who had just droppedoff his date, was driving alone in his Ford Thunderbird east on Locust.He admitted to having had "a few cocktails ... a couple hours before."He brought his vehicle to a stop in the left-hand lane at the trafficlight on Locust just west of the intersection with Thirteenth Street, adistance he estimated to be "several car lengths" behind the police car,but which was actually nearly one hundred feet. He remained at theintersection until after the shooting, facing the rear of the police car.

Scanlan looked as if he had experience in testifying, though heclaimed he didn't. He seemed to know how to connect with his audienceby brushing his eyes across the panel of jurors angled to hisleft. He kept a respectful posture throughout his testimony-somethingthat neither Chobert nor White could do-and wasn't afraid tosmile. There never was much to smile about during the trial, butScanlan, more than the others, seemed willing to open up. He couldbe a very dangerous witness, Jackson must have thought to himself ashe sat coiled like a cat ready to bounce into action, his chair turnedin the direction of the witness box.

Scanlan's observations differed markedly from those of CynthiaWhite. Whereas White had the scuffie between Officer Faulkner andBilly Cook taking place on the sidewalk, Scanlan testified he first sawthe two men in the street in front of the police car. According toScanlan, Officer Faulkner had Billy Cook spread-eagled over the hoodof the police car and was beating him with what appeared to be aflashlight or billy club after Cook had swung around and struck himin the face. Scanlan's observations were confirmed by the fact thatFaulkner's seventeen-inch flashlight was found at the scene with abroken lens. Moreover, the officers who took Cook into custody immediatelyafter the shooting reported seeing fresh blood running downhis neck and from the left side of his face, a fact confirmed by photographstaken of Cook. Cynthia White's version, unlike Scanlan's,omitted any mention of Faulkner hitting Cook. Whether that factwould hold any significance for the jury remained to be seen, but itcertainly raised a question about White's seamless account of whathappened.

The important fact for McGill was that Scanlan saw a man runningacross Locust Street toward the two scuffiing men. Although hetestified that this man brandished a gun, he later modified that claimwith the admission that it was simply an assumption on his part.When he saw the shooting through the flashing red turret light atopthe patrol car, he assumed that the shooter was the man who had runacross the street. That's why he just assumed the man running acrossthe street had brandished a gun. Jackson could understand how Scanlan,an apparently honest man with no real ax to grind, could assertsomething as an observed fact when, in reality, it was nothing morethan an assumption. Experienced criminal defense lawyers acutely understandhow the human mind pieces together bits and pieces of anobserved event, stitching them together with assumptions to create anuninterrupted mental film of what supposedly happened. It is in thestitching where mistakes are often made.

Of all the witnesses, Scanlan was the only one who candidly admittedthat there was "confusion when all three of them were in frontof the car."

The most articulate and engaging of the eyewitnesses, Scanlan wasthe most potent. The jury winced at hearing Scanlan's depiction ofOfficer Faulkner's execution: "The man walked over and was standingat [Officer Faulkner's] feet and shot him twice. I saw two flashes. Icould see the one that hit the officer in the face.... His body jerked.His whole body jerked."

McGill was pleased with Scanlan as a witness, but he wished thathe could have provided more. McGill never asked him to identify thedefendant in the courtroom as the shooter, because he knew that hecouldn't make the identification. Detectives had tried to get him toidentifY Mumia at the crime scene. With another identification, theythought, perhaps the prostitute witness would not even be necessary.But that was not to be. Scanlan's confusion over what he had seenmanifested itself in his identification. He followed the homicide detectivesover to the police van and obediently peered inside. He sawa man laying inside, not quite in a fetal position, but curled up nonetheless.The detectives told Scanlan to look carefully-was this theman who shot the cop? The urge to say yes was compelling, with allof the police activity around him and the urgency evident in the voicesof the detectives. He couldn't help bur notice that this man had flowingdreadlocks. Wasn't it the driver who had the dreadlocks? Scanlanwondered. He tried to reconstruct the sequence of events in his mindas he stood in the cold night air, looking inside the van. He lookedover toward the buildings where Billy Cook was in the company ofpolice officers. He compressed his lips as he tried to figure out whichman did what. Is he the one? the detectives wanted to know. Scanlanlooked hard again inside the van. He noticed Mumia's laboredbreathing. "No," he finally told them, "he was the driver."

"Fuck," one of the detectives groused.

Albert Magilton was on and off the witness stand before anyonecould realize that he didn't offer much at all. He couldn't describethe shooter. He didn't even see the shooting. He was in the westcrosswalk of the intersection, heading north across Locust. He reportedseeing Officer Faulkner's vehicle "put on the lights" at the intersectionof Locust and Thirteenth while both vehicles were proceeding east onLocust. He saw the officer and the driver "walk onto the pavement"between the cars. Magilton then turned away from the scene to crossLocust in the midst of traffic. Although he noticed a man run acrossLocust, he didn't look in the direction of the crime scene until heheard gunshots. Police never even tried to have Magilton attempt anidentification.

Scanlan and Magilton were valuable witnesses, not in their ownright but as bolstering witnesses for White and Chobert. White andChobert claimed that it was Mumia who had the gun in his hand asthe bullet exploded out of the chamber and struck the officer. Scanlanand Magilton reinforced the point that Mumia had, just seconds earlier,run across Locust Street toward the scene; and Scanlan contendedthat it was the man who ran across the street-whatever he lookedlike-who shot the officer.

***

THE CONFESSION

Prosecutors love confessions. It makes their job so much easier. Theydon't need to bolster the credibility of their witnesses; they don't needto make sute that scientific tests were done correctly; they don't needto worty about the integrity of the physical evidence. The defendantconvicts himself through his own words.

Juties feel good about confessions too. Jurors don't want to convictinnocent people. They want to make sute that their verdicts of guiltdon't compound a tragedy with an equally horrific tragedy of sendingan innocent man to death at the hands of the law. So when they hearevidence that a defendant confessed to the crime, their job is madethat much easier also, and their consciences are not racked with naggingquestions about whether they had done the right thing.

Defense lawyers are fond of playing on that human frailty-thehuman tendency to wake up nights wondering if you had made amistake on a gravely important matter. Defense lawyers, hoping tofrighten jurors into finding reasonable doubt, often remind them that,at some point in their lives, they will have thoughts intrude on theirsleep, asking whether the man they convicted was really guilty. Thehope, of course, is that the jury will take a risk-averse approach to thecase-as the Constitution demands-and find that the prosecutionsimply cannot prove its case beyond a reasonable doubt. But wherethe prosecution has evidence of a confession, such pleas and remindersto a jury ring hollow.

A defense lawyer cannot, under any circumstances, let evidence ofa confession enter into a case without challenging it vigorously. In adeath penalty trial, challenging the confession is a life-or-death task.The prosecution claimed that Mumia confessed to the killing of OfficerFaulkner, and the defense had to answer that claim.

Both Officer Faulkner and Mumia were removed by the policefrom the scene of the shooting and taken to Jefferson Hospital, threeblocks away. Mumia was taken from the police van and dumpedviolently onto the emergency room floor near the entranceway. Fortunatelyfor Mumia, he didn't stay there long, as he was seen by an emergencyroom crew within ten minutes of his arrival. Doctor Anthony V.Coletta, a surgical resident on call, responded immediately to a traumacode on his beeper. When he reached Mumia he found him to be"weak ... on the verge of fainting ... if you tried to stand him up, hewould not have been able to stand." Although he was on the floor forabout ten minutes, according to two prosecution witnesses, Mumiasealed his fate while he lay there awaiting a doctor to tend to him.

A hospital security guard named Priscilla Durham told the jurythat Mumia shouted out to the fifteen to twenty police officers hoveringaround him, "I shot the motherfucker, and I hope the motherfuckerdies." When she heard the remark, she figured out, as shetells it, "what was going on." Mumia was the arrestee who shot theother patient in the emergency room; he was the cause for the massinflux of police officers into Jefferson's emergency room. A little whilelater, according to Durham, Mumia shouted out the confession again,phrased in exactly the same way. Through it all, Durham told thejury, Mumia was "screamin' and hollerin'."

Jackson challenged Durham's account of hearing this confession.He had no choice. If the jury believed that Mumia bragged about thekilling in such a coldhearted way, the jurors would not only convictfor sure but would probably want to flip the electrocution switchthemselves. Jackson brought out the fact that Durham didn't mentionthe confession to law enforcement personnel for approximately threemonths.

Durham was ready with an answer, obviously expecting that thedefense would make that point in cross-examination. She turned tothe jury, gave a slight nod, and explained that she had, in fact, reportedhearing the confession the very next day, to her supervisor. She wenton to explain that her supervisor hand-wrote her statement, memorializingthe fact that she had, indeed, heard the confession. Jacksonwas stunned. If Durham had reported hearing the confession on thefollowing day, then it would be impossible to undercut the confessionin any realistic way.

Jackson understood that Mumia's life hung in the balance. Hedemanded to see this hand-written statement.

McGill claimed never to have seen the statement, which in itselfwas a remarkable fact, but suspiciously told the judge that he "wouldbe very glad to have it brought over." If McGill had never seen thedocument, how did he know it was readily retrievable? Surely he hadto have known that Durham was going to say on the witness standthat she reported the confession to her supervisor on the followingday. It was a devastating claim to the defense-too devastating forthis highly aggressive prosecutor not to have known about it, as hewas suggesting. Something was up, but Jackson just didn't know whatIt was.

"Cross-examine her about something else," the judge advised."You can call her later on."

When the cross-examination was over, the jury was left with Durham'stestimony, but no hand-written statement. But, like mannafrom heaven, a detective assisting the prosecutor during the trialmarched down the center aisle and entered the well of the courtroomduring a brief recess. He was carrying a piece of paper, and he seemedto be holding it with reverence, making sure that its edges didn't getwrinkled. He handed the document to McGill, who took a momentto read it through.

Bingo! The detective was able to retrieve a typewritten statementpurporting to be a memorialization of Durham's report of the confessionto her supervisor. He was able to retrieve it before Durham was excusedfrom the stand. It couldn't have been scripted any better for theprosecutor. McGill pompously walked the treasured document over tothe defense table, fully aware that the drama would only bolster his case.He rested it in front of]ackson, without a word, but his mannerism suggestedthat he was telling Jackson to "give it his best shot."

Jackson barely looked at the document before he showed it toDurham. It didn't have a signature-not hers, not anyone's. Jacksondetected that Durham appeared to be surprised by the document aswell. He pressed her about it, not knowing what she would say. Triallawyers hate asking questions without knowing the answer in advance.They're taught to do it only in the most desperate situations, and eventhen to err on the side of holding back. Durham said she had neverseen it, but claimed that it looked like a typewritten version of thehand-written account.

McGill wanted to put that document into evidence. But he hada problem: how could he justifY its admission into evidence if Durhamdidn't actually draft it? The rules of evidence are quite strict aboutthe admission of documents that can't be authenticated by a witness.After all, an unauthenticated document, such as this one, could havebeen generated at any time. But this problem was easily surmountable,not by dint of effort or crafty lawyering. There was, in fact, no problemat all, because sitting on the bench was Judge Albert F. Sabo, aPhiladelphia prosecutor's best friend. Judge Sabo seemingly operatedon a simple rule: if a document or testimony helps the prosecution,it comes into evidence. It's not an evidence rule that law professorsteach their students, but then again, law professors know little aboutthe law as it is deployed in a real courtroom in a real case. Judge Saboapplied that rule in this case and allowed the typewritten documentinto evidence for the jury to analyze for itself.

Jackson was deflated. His questioning from then on subtly butunmistakably took on a different complexion. The questions now werephrased as if he had to accept as fact that Mumia had stupidly shoutedout a confession. Jackson even suggested in his closing argument, preposterously,that Mumia shouted the confession to deflect attentionfrom the real perpetrator-his brother. Could there be any doubt whatthe jury was going to do now?

Mumia understood, probably more acutely than anyone else, thatDurham had done considerable damage. He had been insisting on hisright to represent himself from the very moment that the trial began,but that right had been taken from him-for disruptive behavior,according to the judge; for no good reason other than concern thathe would be too effective, according to Mumia and his supporters.Mumia stood to question this security guard, and he threw out aquestion to her. A few jurors shook their heads disapprovingly. JudgeSabo gave the command to remove the jury from the courtroom andthey were hustled out.

"You realize if you interrupt in front of this jury I'm going tohave to remove you again," Judge Sabo warned.

Mumia hadn't been intimidated by the warnings before, and hewasn't intimidated now. "Judge, you can remove me again and againand again and again. I am going to point out to you what is importantto me; that this is my trial; that this man [gesturing toward Jackson]isyour employee, not mine; that he is functioning for the court system,not for me; he is not doing what I am telling him and directing himto do but what you are ordering him to do .... I am protesting hisappointment, his continuing functioning here. I wish for him to bewithdrawn immediately."

"Are you going to make some statements in front of the jury?"the judge asked.

"Well, I had planned to defend my life in front of the jury. I planto represent myself in front of the jury. I plan to cross-examine witnessesin front of the jury. I plan to make a closing statement andargument in front of the jury. But obviously you have other plans."

"In other words, you're telling me if I bring the jury in, you'regoing to stand up and start making statements in front of the jury?"

Mumia knew exactly what Judge Sabo was doing: he was "makinga record" to justify his banishment once again from the courtroom."I didn't say that at all, Judge. I told you what I plan to do."

"Okay. We'll bring the jury in and we'll play it by ear. Like I toldyou before, if you act up-"

The jury was brought back into the courtroom, and Mumia roseagain to question Durham. The jury turned and shuffied out of thecourtroom again. It had become a virtual daily routine for the jury.

"Okay, Mr. Jamal, it is obvious to the court that you intend todisrupt the proceedings in front of the jury."

"I am not disrupting. It's obvious I intend to defend myself."

"Well, once again I am removing you from the courtroom."

fu had happened many times before in this wild spectacle of atrial, an armed court officer, prompted by Judge Sabo's directive, tookMumia out of the courtroom and relegated him to a holding cell asthe trial proceedings continued.

McGill wasn't going to take any chances with the jury when itcame to the confession. He called another witness, Police OfficerGarry Bell, Faulkner's onetime partner. Bell went to the hospital immediatelyafter hearing news that Danny had been shot. He was standingat the nurse's station when a corps of officers dropped Mumiaonto the emergency room floor. He looked over and saw a dreadlockedblack male lying there and he concluded that his fellow officers had justbrought in the killer. White-hot with anger, Bell went over to Mumia,knelt down to look into his eyes. According to Bell, Mumia looked athim and uttered the exact words that Durham had recounted for thejury. In response, Bell told Mumia, "If he dies, you die."

In his opening remarks to the jury, McGill promised that theywould hear evidence of a confession that revealed a "picture of extremearrogance, defiance, even a strange boastfulness .... " The prosecutorfulfilled that promise.

***

THE BALLISTICS AND MEDICAL EVIDENCE

Two guns were recovered from the crime scene. Officer Faulkner'sgun, a police-issued .38 Smith and Wesson, contained six Remington.38 special cartridges, one of which had been fired. The projectile fromthe spent shell was later retrieved from Mumia's lower vertebra. Theother gun, found within inches of Mumia's outstretched hand at thecrime scene, was also a .38-a five-shot Charter Arms revolver witha two-inch barrel. The Charter Arms revolver contained five cartridges,all of which had been fired.

There was no doubt that the Charter Arms belonged to Mumia.He had bought it eighteen months earlier and registered it in his nameafter having been victimized by robbers in his cab. In fact, the operatorof the sporting goods shop that sold Mumia the gun distinctly rememberedhim. Asked why he remembered him, the witness testifiedthat "he was very well-spoken and well dressed." Folks who buy guns,this gunshop proprietor seemed to be saying, aren't typically welldressed or well-spoken. Or was it the combination of Mumia beingblack with dreadlocks and "very well-spoken and well dressed" thatmade such an imprint on his mind?

McGill made a point of letting the jury absorb fully the fact thatMumia's revolver contained "plus P" high-velocity bullets. The witnessexplained that the plus-P bullet is known in the gun trade as a "devastatingbullet."

Devastating? "When it hits the target, it just almost explodes," thefirearms expert explained.

The prosecutor's message to the jury was disturbing: Mumia wasnot only pleased by what he had done, to the point of bragging aboutit; he had envisioned the need to lay waste another human being whenhe bought this gun loaded with "devastating" bullets, months beforehe ever encountered Danny Faulkner.

Prosecutors like to bring in medical evidence, even when it isincidental to the guilt/innocence calculus. Clinical talk of how a bulletpierces through skin and punctures vital organs has a certain attractionand power. It conveys humanity's fragility in the face of evil. An angryblack man, poised with a gun containing exploding bullets, can snuffout the life of a young police officer in an instant, and there is nothingone can do to stop it from happening ... except to take revengethrough the force of the law and hope that it somehow deters others.That is what a prosecutor wants a jury to feel.

So McGill let the trial linger for a while on clinical and scientificdiscussions about how Officer Faulkner died. The state's pathologistwas called to the stand, and he described how he had removed a bulletfrom the officer's head. It was too deformed, so he said, to be ballisticallymatched to a particular gun. McGill underscored the fact thatthe deformed bullet fragment was a .38 caliber with rifling characteristics"consistent" with Mumia's Charter Arms revolver, thus narrowingthe range of firearms that could have expelled the deadly bullet.It was certainly of little use to simply conclude that the fragment wasa .38: how many .38 caliber weapons existed on the streets of Philadelphia?Too many, by anyone's count.

The prosecution had alleged that Mumia fired several shots, atpoint-blank range, at Officer Faulkner as he lay helpless on the sidewalk.Only one struck him. Why? Although McGill didn't harp onthe point, the picture for the jury was that Danny Faulkner desperatelyrolled his body from side to side to avoid being killed. He succeededin causing the shooter to miss twice. The shooter then bent downcloser, all the better to ensure that the final bullet would reach itsintended destination.

***

AN OPEN-AND-SHUT CASE?

The prosecution had a compelling case. Some say the trial recordproves without doubt Mumia Abu-Jamal brutally killed Officer DannyFaulkner. Joseph McGill is fond of telling the public that he's neverhad a stronger murder case in his successful and high-profile career asa Philadelphia prosecutor. The Fraternal Order of Police, campaigningnationwide to battle the forces favoring Mumia, call it a "clear-cutcase" and accuse Hollywood celebrities of being "fools" for joiningforces with "anti-death penalty groups, left-wing extremists, and misguidedacademics." The Philadelphia district attorney's office even dispatchedan angry letter to Hollywood celebrities supporting Mumia,like Ed Asner and Whoopi Goldberg, extending McGill's claim tosay that it was "one of the strongest" cases ever prosecuted in that office.To reach an even wider audience, District Attorney Lynne Abraham(who was actually the municipal court judge presiding over Mumia's arraignment)penned an op-ed piece in the New York Times, entitled"Mumia Abu-Jamal, Celebrity Cop Killer," questioning how anyonecould be seduced by this cold-blooded killer.

Such seemingly overwhelming evidence-four eyewitnesses (includingtwo prompt on-the-scene identifications), a highly memorableconfession by an angry black radical with a perceived affiliation withan anti-establishment organization, an alleged murder weapon foundat the scene with rifling characteristics consistent with the bullet thatdrilled through Officer Faulkner's brain, and a suspect found withinfeet of the deceased officer and within reachable distance to the gun:it all begs the question, why is there a fuss over Mumia's case? Whyhave Hollywood celebrities, authors, academics, political notables, collegestudents, and progressive activists around the world seized uponthis man's predicament when, it would seem, his predicament is oneof his own making?

There is not perhaps anywhere to be found a city inwhich prejudice against color is more rampant than inPhiladelphia.

-- FREDERICK DOUGLASS

Philadelphia is bleeding to death because of the MOVEtragedy.

-- PHILADELPHIA JUDGE STANLEY KUBACKI

3. THE SOURCE OF GOOD AND EVIL

Racial polarization is a defining feature of Philadelphia, as it hasbeen since the mid-1800s when Frederick Douglass visited thecity and decried the subjugation of blacks. Warnings from nineteenthcentutyintellectuals of an awakened and angered underclass became areality in the 1960s, as the Black Panther Party, Huey Newton's radicalblack empowerment group, gained a strong foothold in Philadelphia'sminority communities (40 percent of its population), and themunicipal and federal governments took note. The FBI in August1967 launched a surreptitious offensive against so-called "Black N ationalistHate Groups" (BNHG) nationwide as part of its overall domesticsurveillance program known as COINTELPRO, short for"counterintelligence programs."

The FBI, popularly regarded as a premier crime-fighting agency,was in the '60s and '70s a political police force engaged in extralegalactivities calculated to contain, and if possible destroy, left-wing politicaldissent of all types. Slowly emerging in the public record is amore complete accounting of this domestic counterinsurgency cam-paign. Hoover's obsession with Martin Luther King, Jr., which extendedto psychological warfare calculated to induce King to commitsuicide, is now a matter of public record. [1] Thomas I. Emerson, thelate Yale law professor, remarked that the FBI's COINTELPRO operations"jeopardized the whole system of freedom of expression whichis the cornerstone of an open society.... At worst it raises the specterof a police state ... [where] in essence the FBI conceives of itself asan instrument to prevent radical social change in America .... [T]heBureau's view of its function leads it beyond data collection and intopolitical warfare." [2]

In fact, J. Edgar Hoover's obsession with black nationalism stretchedback to the days of Marcus Garvey (1917-18), one of the first black nationaliststo receive widespread attention in the United States. Whenthe National Association for the Advancement of Colored People(NAACP) was formed in 1940, principally in response to widespreadlynchings, the FBI quickly penetrated that staunchly anticommunist organizationto look nonetheless, and without success, for communist"contamination and manipulation."

During the 1960s, as spontaneous and uncoordinated rebellionsflared up in various cities, Hoover became increasingly concerned thatthe formation of black organizational leadership would lead to theharnessing of black rage, which in turn would threaten "law and order"-a coded expression for protecting the status quo. To Hooverand others in the Bureau, the solution was obvious: destroy even thepossibility that blacks could become organized. They used whatevermeans were at hand to achieve that end.

The Black Panther Party was originally established in Oakland, inthe fall of 1966. Shortly after Labor Day 1968, Hoover publicly announcedthat "the greatest threat to the internal security of the country"was the Black Panther Party. [3] Justifying aggressive FBI tactics onclaims that the Panthers were nothing more than violent thugs, Hoovercompletely whitewashed the fact that the "ten-point program" ofthe Black Panther Party was inspired with themes of direct communitypolitical control over, and economic self-sufficiency within, the blackcommunities. In late 1967, the Panthers initiated free breakfast pro-grams for black children, and offered free health care to blighted communities. [4] A year later, the Black Panther Party expanded its effortsinto community education and antidrug programs. The success of thePanthers in attracting allegiance within black communities sparkedconcerns within the FBI, with one senior agent noting in a memothat membership was "multiplying rapidly." [5]

Indeed it had. By 1968, there were as many as five thousandmembers in the Black Panther Party, with chapters in over a dozencities. The FBI itself admits to 295 distinct COINTELPRO operationsagainst black nationalist groups; of these, 233 were aimed at theBlack Panther Party specifically. [6] Shootouts between police and thePanthers stoked the prejudices of the white population just as it furtherradicalized many student leftists. New Left leader Tom Hayden advocatedand organized target practice for young political radicals, blackand white, so alarmed was he over the rash of shootouts involving thePanthers. [7] "The total number of fatalities resulting from these brutallyillegal activities on the part of the nation's 'top law enforcementagency,' " one knowledgeable observer laments, "will probably neverbe known, nor will the number of years spent by innocent peoplerailroaded into prison cells or the number of lives wrecked in somewhatmore subtle ways." [8]

***

Justified on dubious security grounds, COINTELPRO tactics providedthe green light for municipal police agencies to engage in policestateactivities. Philadelphia became the preeminent example, if notthe paradigm, of police-state governance in urban America in the activistera of the '60s and '70s. Frank L. Rizzo, Philadelphia's mayorfrom 1972 to 1980, exemplified the image of the tough-talking brutewho ran a town with unquestioned authority. As the onetime head ofits police department, Rizzo transformed the Philadelphia police forceinto a political weapon targeted at left-wing organizations, all in thename of law and order. Philadelphia was over 40 percent black andit was a breeding ground for radical politics in the heady days of the'60s and early '70s. Aware that they were governing a city containinga large minority community under the thumb of an unresponsivewhite power structure, Rizzo and other power brokers in Philadelphiafeared that themes of black nationalism and empowerment would resonatewith, and hence radicalize, what had long been a ratherquiescent underclass. Rizzo wanted to keep it that way, and theproperty-owning and middle-class whites of Philadelphia were solidlyin accord. There was an implicit pact between Rizzo and the businesscommunity in Philadelphia: the police could do whatever they mustto keep their boots on the throats of the underclass, so long as thecrime rate was kept under control, left-wing political activism neutered,and the business climate cultivated.

Rizzo, the son of a police sergeant, had served in the Philadelphiapolice department for forty-five years. He was, no doubt about it, alarger-than-life figure. Although he rose through the ranks to becomemayor in 1972, he never quit being a police officer in terms of hispolitical disposition and outlook. As a cop, Rizzo prided himself onthe liberal use of brute force. He encouraged it in other cops, givingit a wink and a nod even when he was mayor. Rizzo's police-can-dono-wrong credo pervaded the collective consciousness of the policedepartment, and to a disturbing extent the public at large.

To consolidate power as mayor, and thus to further imbue policeofficers with a feeling of invincibility, Rizzo worked hard to placeloyalists in critical positions of power within the municipality. Themain line of defense against governmental abuse, the state judiciary,was brought into line with crude political tactics. Judges who lookedaskance at police heavy-handedness found themselves off the benchafter lost reelection bids. Strategic leaks of embarrassing and sensitiveprivate information targeted at political enemies created a climate offear among those who otherwise could have challenged Rizzo's obsessionwith political activists and organizations seeking meaningful socialchange in Philadelphia.

Rizzo first honed his aggressive police tactics on bohemian counterculturehangouts that sprouted in various parts of the city in themid- to late '60s. Rizzo took it as a crusade to rid Philadelphia ofcounterculture kids and freethinking young people by demolishing thecommercial establishments that were created to cater to them. Therewould be no Haight-Ashbury or Greenwich Village in Philly. Policeraids of head shops, funky cafes and bars made the cost of doingbusiness virtually prohibitive. Rizzo the Raider, as he became known,reasoned, quite rightly, that hippies and pot-smoking youngsters fromoutside Philadelphia would be disinclined to flock to the city if theurban environment provided no safe havens for their activities.

Homegrown political radicalism was the next target. The mostglaring example of Rizzo's fixation on squelching potentially radicalpolitical activity occurred in November 1967. Rizzo authorized a "riotplan"intervention into a demonstration outside a school meetingwhere high school students were negotiating with school officials overimplementation of a black studies program. The demonstrators numberedin the several thousands, voicing their support for the students.In classic Rizzo style, police officers wearing motorcycle boots andleather jackets encircled the demonstrators. Rather than give space tothe demonstrators, the police gradually tightened the perimeter, provokingthe demonstrators. It is unclear what prompted the announcement,but it was inexorable that the announcement would come: "Gettheir black asses!" Rizzo shouted. The jittery cops collapsed the leathercladperimeter onto the demonstrators, engulfing them in a swirl ofviolence. The Philadelphia director of the ACLU, attending the demonstrationto monitor police brutality, reported that Rizzo's cops beatthe demonstrators "unmercifully with clubs."

Rizzo's fear of cultural and political subversion became hauntinglyfanatic when it came to more organized left-wing political activism.Philadelphia developed a premier special police unit, known as theCivil Defense squad, to surveil and ultimately subvert the subversives.Modeled after similar units within the FBI, the CD squad used all ofthe domestic counterinsurgency tactics that were in play against nationalfigures on the left. Infiltration with snitches and undercoveroperatives into progressive and left-wing political organizations wasroutine. Bulging files containing photographic surveillance and observationnotes rested in file cabinets down the hall from the recordsroom containing files on criminals and open criminal investigations."We keep a record in the file of all demonstrators we cover," one CDsquad officer stated in court testimony during the trial of well-knownpeace activist Philip Berrigan.

At the height of '60s activism, the Panthers in Philadelphia stoodout (as they did in other U.S. cities). How could they not, with theirmilitary bearing and discipline, and their tough-talking, no-bullshitrhetoric. There was no doubt the Panthers and Rizzo were destinedto collide, but not before they engaged in a toxic catch-me-if-you-cansurveillance game. In mid-September 1969, a bugging device was discoveredin the Panther headquarters in Philadelphia. Later that month,the Panther office was looted and internal documents illegally seized,including, ironically, signed petitions gathered by Panther membersin its campaign for communiry control of the police.

In March 1970, CD squads, with the help of FBI agents, raidedanother Panther office in north Philadelphia and arrested eleven peoplebelieved to be Panther members. Five months later, very early oneAugust morning, CD squad units simultaneously raided Panther officesat three Philadelphia locations, with television news cameras intow-another classic Rizzo move, as he was consumed by the desireto manipulate public perception through carefully orchestrated mediaevents. With stunning speed, CD squad officers and federal agents,protected by bulletproof vests and chosen for their expertise with firearms,aggressively subdued Panther members, who actually never putup any genuine resistance. They then proceeded to loot and destroythe offices.

To say that Rizzo had a monstrous dislike for the Panthers is anunderstatement. He relished belittling them in the press, hoping toprovoke their ire and thus induce bloodshed, which could then beused to justifY even more repressive police tactics. After the August1970 raids, Rizzo taunted the Panthers as "yellow" because the arresteeshad complied immediately with law enforcement directives todrop their weapons. Rizzo suggested that the Panthers were all barkand no bite because they didn't engage the raiding cops in a shootout.The arrestees were also humiliated, upon Rizzo's orders, by having tostand naked for prolonged periods of time, awaiting to be stripsearched. News photos depicted naked Panther members, with uniformedwhite police officers standing next to them with shotguns,chins up, chest out, and obviously satisfied-photos disgustingly suggestiveof an Mrican safari. Rizzo loved the photos and the imageryof police domination. "Imagine," he gloated, "the big Black Pantherswith their pants down."

In the immediate aftermath of the August raids, news reportersconfirmed complaints by Panther leaders that files and office equipmentwere stolen and the physical plant of the offices destroyed. Whenreporters confronted Rizzo with this, he grew even more defiant, withvintage Rizzo-like panache: "We're dealing with a group of fanatics,yellow dogs .... We are dealing with psychotics and we must be in aposition to take them on. These imbeciles and yellow dogs ... we'dbe glad to meet them on their own terms. Just let them tell us whenand where."

It would never be a fair fight, of course. Rizzo had the guns, thenumbers, the judges, and "the law" on his side. Especially "the law."

***

It was in this climate that Mumia gained political consciousness asa young teenage Black Panther Party member. Mumia credits a kickin the face he received from a Philadelphia cop when he was fourteenyears old for his membership in the Party. In fact, he became one ofthe founding members of the Philadelphia chapter at the age of fifteen.As Mumia tells it, he and three other "Afro-headed" youngsters wentto a George Wallace rally, insanely yelling "black power" amidst a seaof rednecks. Attacked by upward of ten burly men, Mumia and hisebullient friends tried to summon help from the police. Here's howMumia describes what happened next: "[A] cop saw me on the groundbeing beaten to a pulp; [he] marched over briskly-and kicked me inthe face. I have been thankful to that faceless cop ever since, for hekicked me straight into the Black Panther Party."

Mumia was precisely the type of black youth that the Pantherssought in their efforts to erect a militant left-wing organization. ThePanthers were unabashedly Marxist, blending the revolutionary zeal ofFranz Fanon with the communist doctrines of Mao Tze-tung. In theyears leading up to Mumia's entry into the Black Panther Party, blackradicals were presented with two paths to black empowerment: oneprovided by the Student Nonviolent Coordinating Committee (underthe leadership of Stokely Carmichael) and the other by Huey Newton'sPanthers. SNCC veered in the direction of black separatism,rooted in the belief that black empowerment could only thrive outsidethe hegemony of white influence. On the other hand, Newton rejectedthe whole notion of separatism; instead, he felt that the Pantherswould become a vanguard of the left generally, and as such, they couldlead oppressed people of all stripes to genuine revolutionary socialism.Whereas Carmichael aroused crowds with the chant "Black Power!"the Panthers invoked the slogan "All Power to the People" -meaning,power to oppressed people everywhere. SNCC and Carmichael appealedto the college crowd; Huey and the Panthers appealed to theurban ghetto youths.

Mumia (along with his twin brother Wayne) was born in Philadelphiaon April 24, 1954. By Mumia's own account, his pre-Pantheryears were "absolutely unremarkable." He grew up poor in a housingproject in north Philly, one of five boys and one girl born to EdithCook. His father died when he was twelve, but his mother-who byall accounts was a remarkably strong woman-maintained a tight-knit,loving, and spiritually nurturing household. Mumia took to religionas a youngster, becoming a student of religious texts while others readcomic books. In fact, people who remember Mumia as a child uniformlycharacterize him as a lover of books and gifted with words.The poet Wordsworth observed that "the child is the father to theman." Mumia the man is very much the offspring of Mumia the child.

Edith named her son Wesley. Wesley Cook took on the moreevocative name Mumia Abu-Jamal not so much in a moment ofepiphany bur over time during the self-exploratory years of adolescence.In many ways, Wesley Cook grew into Mumia Abu-Jamal, withthe change in name reflecting a change, a birthing, of a new consciousness.It started in a high school class taught by a teacher fromKenya. In a modest effort to broaden the horizons of the studentsbeyond the suffocating confinement of urban existence in the projects,this teacher gave Swahili names to his students. Somehow, whetherby happenstance or design, Wesley Cook was dubbed Mumia. Freespirited by temperament and captivated by the notion that he couldbe liberated from the name given to him at birth (actually a difficultthing to do, psychologically and emotionally), Wesley Cook took aliking to the name, not coincidentally at a time when he took a likingto the liberation themes of black empowerment rhetoric.

The name Abu-Jamal came about later. Mumia's firstborn son wasnamed Jamal. Abu-Jamal is Arabic for "father of Jamal." Hence, MumiaAbu-Jamal, a Swahili and Arabic combination.

Joining the Black Panther Party in May 1969, Mumia quicklyimpressed with his intelligence and his instinctive need to communicate.At fifteen, he became the Philadelphia chapter's minister ofinformation. It was his job to issue written status reports on the Philadelphiachapter to the Oakland headquarters, which would then bepublished in edited form in the national Panther journal, Black Panther-Black Community News Service. Mumia dove into the assignment,and took enormous pride (which he still carries to this day) in thejournal's wide international circulation. It seemed to him that journalismwas in his genetic makeup, something that he had no choicebut to do. Mumia was so taken by his foray into journalism that heincreasingly resented conventional schooling as an encroachment uponwhat he regarded as the truly transcendent work of the Panthers. Hedropped out of high school, briefly it turns out, to work full-time asa journalist. The precocious teenager soaked in the experience, travelingand working in New York and the Bay Area when not typingaway in the Panther offices in Philadelphia.

Mumia, of course, didn't know it at the time, but considerableCOINTELPRO attention was focused on the Black Panther-BlackCommunity News Service. FBI headquarters in 1970 observed that "theBPP newspaper has a circulation of ... 139,000. It is the voice of theBPP and if it could be effectively hindered, it would result in helpingto cripple the BPP." [9] The New York FBI office endorsed the sentiment:"[the FBI] realizes the financial benefits coming to the BPPthrough the sale of this newspaper. Continued efforts will [therefore]be made to derive logical and practical plans to thwart this crucialBPP operation." [10]

FBI files, almost a thousand heavily redacted pages of which havethus far been disclosed, indicate that Philadelphia and federal authoritiestook an interest in Mumia even before he officially became a memberof the Panthers. Reflective of the thoroughness oflaw enforcement'ssurveillance of political activists, the name Wesley Cook appeared in a1968 surveillance report, documenting Mumia's arrest at the pro-George Wallace rally mentioned earlier. The interest intensified, ofcourse, when this young, impassioned high school kid assumed a prominentrole in the Philadelphia chapter of the Black Panther Party. Perhapscomparing Mumia to typical suburban adolescents, surveillanceofficers didn't know quite what to make of this young teenager's commitmentto radical politics. It was enough, however, to provoke securityconcerns, as this entry in an FBI document illustrates:

In spite of the subject's age (fifteen years) Philadelphia feels thathis continued participation in BPP activities in the PhiladelphiaDivision, his position in the Philadelphia Branch of the BPP,and his past inclination to appear and speak at public gatherings,the subject should be included in the Security Index.

Mumia's writings, his whereabouts, his interpersonal relationships,his speeches-all became part of the security databank of the municipaland federal government. Law enforcement agencies never detectedany criminal activity on Mumia's part, only a dedication to the Panther'sgoals, which essentially boiled down to black empowerment.But he was never far from the minds of those responsible for "domesticsecurity" (the justificatory language of COINTELPRO). Indeed, onat least two occasions, Mumia, without his knowledge, came underquick suspicion for involvement in at least two homicides (thoughnever arrested), later attributed to the overtly violent Black LiberationArmy, only to be removed from suspicion upon ironclad proof thathe could not have been involved.

Mumia reduced his involvement with the Black Panther Party in1970 to return to Benjamin Franklin High School. Confident andthoroughly politicized, Mumia quickly led a student movement tochange the school's name to Malcolm X High School. School officialsbalked at the demand, but Mumia acquired a grudging respect amongthe adults as an articulate and charismatic leader.

Mumia's experience in the Black Panther Party planted the seedsof activist journalism that have flourished ever since. Mumia beganhis broadcasting career, after attending Goddard College, at a TempleUniversity radio station, WRTI-FM, where he did a commentaryshow on black affairs until 1973. Two years later, Mumia became apopular presence on station WHAT, airing broadcasts on a covetedmorning show spot. Politics was always a part of Mumia's journalism,just as it was an integral part of his work ethic. So it is not surprisingthat Mumia left WHAT after he led an employment grievance-relatedwalkour with other station employees.

Mumia then briefly went to WPEN, only to move over to WUHYas a reporter and a commentator in July of 1979. It was as a WUHYreporter that people began to take notice of Mumia as a fixture at cityhall. Mumia understood what Rizzo was all about, and he understoodthe dynamics of racial oppression in Philadelphia. His news reportstypically focused on the victims of that oppression, highlighting storiesdealing with housing, prisons, education, and poverty. But what setMumia apart was not so much the subject matter of his journalism,or even the passion he brought to his craft. His news pieces were notgrandiose diatribes against the white power establishment, or embellishedleft-wing critiques on municipal politics. They dealt, more oftenthan not, with small stories involving real people with real pain withina real city with a really nasty government. It was the small stories thatilluminated the bigger picture of Philadelphia's racial polarization.People in the marginalized communities listened to Mumia becausehis stories lent a dignity to their lives by giving voice to their frustrationsand by simply acknowledging that they existed. Mumia had akeen understanding that indifference suffocated the human spirit.Feelings of isolation among disenfranchised poor people demoralizedthem and etched a path to alcohol and drug abuse, violence, andcrime. Human connectedness, to this day, is a recurring theme in hiswritings. It didn't take sitting in a tiny cell on death row, twentythreehours a day, for Mumia to appreciate the importance of humancontact.

His journalism colleagues listened admiringly because he had aresplendent gift to enliven a story with drama and vividness, and didso with seeming effortlessness. He had the rare ability to draw pictureswith words and evoke emotions with his voice. Mumia had a way ofspeaking that cut through cognitive barriers, disengaged intellectualismsthat stood in the way of true understanding, and induced peopleto feel. A Bob Marley song says, "He who feels it, knows it." Mumia'sgift as a journalist operated on that insight.

Mumia's ability to tease out the drama in a story with remarkableprehensile sensibility, and then to weave the facts together with hismellifluous voice, led to the now-famous encomium "voice of thevoiceless." His journalism led to numerous awards and citations, includingone from the Society of Professional Journalists. He becamepresident of Philadelphia's Association of Black Journalists in 1980,and in January 1981, he was identified by the Philadelphia Inquireras one Philadelphian to watch, because his "eloquent, often passionate,and always insightful interviews bring a special dimension to radioreporting."

Yet as Mumia sat there in the predawn hours of December 9,1981, slumped on the curb next to the front right bumper of hisbrother's beat-up Volkswagen, blood oozing out of his chest and soakinghis shirt, he was a criminal suspect in a brutally vicious murderof a cop; a man who arrived in that seedy side of Philadelphia at anhour when most respectable folks are tucked away in bed because hewas moonlighting as a cab driver; a man who drove a cab because hiscareer as a journalist, a remarkably promising career, was at a crossroads.Fired at radio station WDAS because his journalism was perceivedto be growing more tendentious and biased, Mumia begandriving a cab to support his family. Beset by marital difficulties andfinancial strains, Mumia grew more distant from his professional col-leagues. They knew that Mumia had taken on the dreadlocked hairstyleassociated with the much-maligned and much-misunderstoodPhiladelphia black radical group MOVE, but they didn't know why.They knew that Mumia wrote stories about MOVE with heartfeltsympathy and with an increasingly overt alliance to its tenets, but theydidn't understand why. They didn't understand, and certainly didn'tapprove of, Mumia's selling of MOVE-published newspapers in thecity hall pressroom. People began to wonder: What's up, Mumia?

***

The MOVE organization-the name shortened from Christian LifeMovement-surfaced in Philadelphia during the early 1970s. It aroselargely through the teachings of an enigmatic, self-taught carpenternamed Vincent Leaphart. Inspired by the spiritual precepts and dietaryregimen of a religious sect known as the Kingdom of Yahweh, Leaphartdeveloped a worldview that, at first blush, seemed innocuous.Immediately identified by their dreadlocks and their adopted surname,Mrica (Leaphart became John Mrica), MOVE members quickly wentfrom items of curiosity to curious threats to the status quo. MOVEwas described by most so-called mainstream journalists as a back-tonaturecult, a terse description that captures a certain essence to thegroup, as it billed itself as devotees of a simplified, more life-affirmingmode of living. According to a MOVE statement,

MOVE's work is to stop industry from poisoning the air, thewater, the soil, and to put an end to the enslavement of liftpeople,animals, any form of lift. The purpose of John Africa'srevolution is to show people through John Africa's teaching, thetruth, that this system is the cause of all their problems (alcoholism,drug addiction, unemployment, wift abuse, child pornography,every problem in the world) .and to set the example ofrevolution for people tofollow when they realize how they've beenoppressed, repressed,duped, tricked by this system, this governmentand see the need to rid themselves of this cancerous system asMOVE does.

John Africa's devotion to simplicity and his deep skepticism ofscience and technology had a certain seductive charm. "Science is atrick," he intones in his tract, The Teachings of John Africa, whichMOVE members regard as a sacred text. "Man will see the air andbuild a fan, see the sun and invent a light bulb, see a bird and builda plane. He will duplicate, copy the principle of life rather than DOAS, be like the principle of life." This advocacy of touching MotherNature in the raw, unmediated by "duplicate" devices, translated, inpractice, into eating only raw foods, eschewing even the exterminationof cockroaches and urban vermin, and disavowing the use of soap andmodern-day plumbing. Others in the Powelton Village communitywhere MOVE took root, not surprisingly, were hardly enchanted withthis back-to-nature ideology.

In a 1996 interview, Mumia described MOVE as a "family ofrevolutionaries, of naturalist revolutionaries ... who oppose all thatthis system represents." Just as his journalism colleagues back in thelate '70s didn't understand his affinity for MOVE, Mumia didn'tunderstand the generalized and intense antipathy felt by most Philadelphianstoward its members. "They are the beginning of a movement,"Mumia announced to colleagues in 1979, "anyone with eyesand perception can see that."

"What I found," Mumia explained in that 1996 interview, "wereidealistic, committed, strong, unshakable men and women who had adeep spirit-level aversion to everything this system represents. Tothem, this system was a death system involved in a deathly war. Tothem, everything this system radiated was poison-from its technologicalwaste to its destruction of the earth, to its destruction of theair and water, to its destruction of the very genetic pool of humanlife and animal life and all life." [11]

Mumia's sympathies for MOVE reflected not only his affinity forits underlying doctrines of simplicity and spiritual awakening but alsosprang from Mumia's awareness of Rizzo's iron-fisted racist rule overPhiladelphia. Mumia's disgust over Rizzo's infectious racism wasshared by a growing segment of Philadelphia as early as 1978. Rizzoran a blatantly racist reelection campaign in 1978 ("Vote White" wasone campaign slogan), which failed to resonate as forcefully as it oncehad with the white citizenry. Philadelphians grew impatient withRizzo, as his heavy-handed tactics, which were once grudgingly toleratedby many well-to-do citizens, did not lead to significantreductions in the crime rate, as he had promised. Moreover, the indiscriminateuse of deadly force and lesser forms of police abuseagainst minorities began to disturb many Philadelphians.

In fact, revelations of police abuse even caught the attention ofthe Department of Justice. Hearings were held in 1979, an unprecedentedoccurrence, where witnesses described rampant brutality, massivecover-ups, and suppression of evidence of police abuses. Businessleaders testified that they had entered into a Faustian pact with Rizzo:police abuses would be tolerated on the promise that the businessclimate would improve by virtue of a declining crime rate and a subjugatedminority community.

The federal government hearings substantiated and reinforced theview of many in Philadelphia that the city had become a virtual policestate, which had led to dangerous levels of racial polarization. Theescalation of racial tensions provoked ever greater demands by progressivepolitical groups for social justice, which in turn promptedPhiladelphia cops to resort to even more draconian police methods.It was a vicious cycle that the Department of Justice sought to break.

On August 13, 1979, the Justice Department filed a lawsuitagainst the city of Philadelphia, Mayor Rizzo, and over a dozen topcity and police officials. The essence of the suit was the charge thatthe city and its municipal leaders condoned systematic police brutality.Never before in U.S. history had an entire city police department beenaccused of violating civil rights of its residents, not only through outrightphysical brutality but by the crudest of Orwellian methods ofsurveillance as well. The suit was never litigated, however. A federaljudge dismissed it, not because evidence was lacking but because thefederal government lacked the authority (the legal concept is termed"standing") to institute such a suit. The outcome, however, was, in asignificant sense, beside the point. The actual point was made loudlyand clearly by the mere filing of the suit. Philadelphians took notice.

***

True to form, Philadelphia law enforcement couldn't avoid conflictwith the MOVE organization. From 1974 to 1976, Philadelphia policearrested MOVE members some four hundred times for offensesranging from disturbing the peace to illegal weapons possession. Thepolice had an "unconcealed disgust and contempt" for MOVE members. [12] According to journalists John Anderson and Hilary Hevenor:

By September of 1976, there were reports that John Africa haddecided to abandon the course of peacefUL resistance. Leaphart,one newspaper article noted, had 'told his fOllowers to prepare fOra showdown with police. ' And so it was about this time thatMOVE members began doing calisthenics, practicing boxing andmartial arts, and most ominous of all, stockpiling weapons andammunition. [13]

Things began to come to a head in May 1977, arising from thecity's desire to rid itself of MOVE. According to city officials, peopleliving in the Powelton Village section of west Philadelphia, a middleclassblack neighborhood of row houses, complained about the sanitaryconditions of the MOVE compound and the noise coming fromMOVE members' use of a bullhorn to disseminate their diatribesagainst "the system."

When verbal threats and warnings did nothing to frighten theminto submission, the police department, on August 8, 1978, resortedto a bulldozer. They tore down the barricades and knocked out thewindows of the MOVE headquarters. About twenty officers thenrushed into the tattered communal residence, ready to open fire. Theyfound the first floor empty of people. They soon discovered that theMOVE members, disoriented and fearful for their own lives and thelives of their children and their animals, had taken refuge in the basement.Firemen unleashed their hoses in an attempt to flood the basementwith water; smoke was also blasted into the confined space. TheStakeout officers then opened fire on the trapped MOVE members.

News photographers captured images of desperate women tryingto climb out through a basement window with children in their arms.With bullets whizzing, compounded by the ricochet of the bulletsemanating from uncontrolled gunfire, the police assault on the compoundnever acquired any semblance of order or logic. It descendedinto chaos virtually at the moment heavily armed Stakeout cops enteredthe building.

Authorities claimed that the wild shootout had been started byviolence-prone MOVE members, which resulted in the death of onepolice officer and the injury of a dozen others. Police Officer JamesJ. Ramp, fifty-two years old and one of the "old men" of the StakeoutUnit, received a single gunshot wound (exactly where was a subjectof intense dispute), killing him.

Ramp had earned the right to end his career sitting behind adesk, but he had been drafted into the MOVE assignment. Tenyears removed from actual street police duty, Ramp didn't evenknow how to put on his blue riot helmet when he was dispatchedto Powelton Village. "I've been off the street so long, I don't knowwhat to do anymore," he joked as his helmet rested backward onhis head.

Enraged by Ramp's death and convinced that the bullet camefrom a MOVE gun, Stakeout cops seized MOVE leader Delbert Africaas he tried to surrender and beat him unmercifully. Their frenziedrage left them unconcerned over the fact that news photographerscaptured the brutality on film.

After the dust settled, eleven MOVE members were arrested. Apress conference in city hall later that afternoon provided the platformfor Police Commissioner Joseph O'Neill to excoriate MOVEfor the Ramp killing. Mayor Rizzo then cursed reporters, blamingthe Philadelphia Inquirer in particular for helping to create a climatefor this sort of disaster. "Every week in your goddamn newspaper,every weekend, they have headlines in your paper about policemendid this, did that, murder, murder, murder. ... That's what's wrongwith this city.... You're destroying it. The people you represent aredestroying it." Pointing to the death of Officer Ramp, Rizzo ex-claimed that it showed the need to restore the death penalty in Philadelphia."Put them in the electric chair," Rizzo hollered, "and I'llpull the switch!"

It wasn't only the top brass who expressed outrage over Ramp'sdeath. The prevailing sentiment among officers, as one police officerdescribed it, was that the Stakeout Unit "should have killed all ofthem." Another officer told a reporter that MOVE members wantedviolence so that "those animals will become martyrs." The malevolencelingered for years, as the Ramp killing became a rallying cry for Philadelphiacops in their vendetta against MOVE and their distrust ofblacks generally. The tragic and highly publicized 1985 bombing ofthe relocated MOVE compound on Osage Avenue, leading to thedeath of John Africa and ten other MOVE men, women, and children,can only be understood against the backdrop of the 1978 siege onMOVE's Powelton Village compound. Many of the older cops involvedin the police action in 1985 distinguished themselves fromother younger cops with the title "'78 veterans." The war againstMOVE continues to this day.

In the trial of the MOVE Nine, the arrested MOVE memberswere convicted in the shooting death of Officer Ramp and sentencedto prison for thirty to one hundred years (two others were separatelytried-one was convicted, the other acquitted after renouncing herMOVE affiliation). The trial was an ordeal-a harbinger of Mumia'strial-with acrimonious exchanges between judge and defendantsleading to frequent expulsions from the proceedings. The trial judge,sixty-eight-year-old Edwin S. MaImed, a conservative white man witha penchant for gentlemanly rectitude, loathed the convicted defendants."In my opinion," he said before pronouncing sentence, "anythought of rehabilitation of these defendants would be absurd. Theyhave persisted in setting their own bizarre codes of conduct withoutregard for the laws of the Commonwealth or the rights of others, andI don't think their attitudes will change."

As an aside, three Stakeout Unit officers who beat Delbert Africain front of television cameras and still photographers were also put ontrial. Judge Stanley Kubacki dismissed the charges at the close of theprosecution's case. "Philadelphia is bleeding to death because of theMOVE tragedy," he said.

One of the reporters covering the MOVE Nine trial was MumiaAbu-Jamal. A day after the sentences were handed down, the trialjudge appeared on a local radio talk show. A caller came on the lineand asked the judge, "Who shot James Ramp?" The judge admittedthat he had no idea. That caller was Mumia.

Mumia had no way of knowing that his frequent attendance atthe MOVE Nine trial, and his manifest sympathy for the group(graphically demonstrated by his new dreadlocks), would come intoplay a few years later in his own legal predicament. The courtroomfor the MOVE Nine trial was always filled with cops, as the trialmoved along from December 1979 to May 1980, with overt hostilitiesexpressed against those attending in sympathy with the defendants.Mumia was among those repeatedly harassed by police inside thecourtroom and out in the corridors of that temple of justice.*

***

The first officers at the scene of the Faulkner shooting, a year anda half after the conclusion of the emotionally heated trial of theMOVE Nine, were two Stakeout Unit cops. Mumia was a well-knownally of MOVE to police officers and officials who were '78 veteransstill angered by the Ramp shooting. Witnesses observed officers beatingMumia at the scene before putting him into a police van. Withlaw enforcement officers predisposed to believing that Mumia, a perceivedmember and/or ally of MOVE, had just killed a brother officerin cold blood, the question naturally arises: What were they capableof doing to make sure that evidence at Mumia's trial would exist toensure that "justice for Danny" would be done? What would angrycops do to execute justice?

I know there are certain cases that haveexplosive tendencies in the community. Andthis is one of them.

-- JUDGE PAUL RIBNER

4. CONSTRUCTING GOOD VERSUS EVIL

A trial is a frightening event.

Those who have never experienced courtroom combat tendto view trials as nothing more than a highly structured mechanism toresolve conflict. Resolving conflict undoubtedly expresses the fUnctionof a trial-the imposition of order on conflict, the chaining down ofpassions with reason, the rectification of legal wrongs. But to a dedicatedtrial lawyer, a trial is always a battle between good and evilfought on a terrain of bleak emotions. The trial lawyer must tap intothe harsh emotional core of a case, find its deepest human elements,and then construct a strategy to place his client's cause on the side ofgood, or at least, in opposition to evil. In a criminal case, the prosecutioncomes into the process presumptively on the side of good andthe defense lawyer on the side of evil. A major hurdle for the defenseis turning the tables.

Tapping into the emotional core of a case necessarily involvesgetting inside the emotional universe of one's client, and to the extentpossible, that of the other major players in a case. In so doing, thetrial lawyer risks exposing the deepest regions of his own dark side, ofhis own sorrow, distress, and anger, because these and other emotionsare the human elements of virtually every criminal trial. To do a trialright, a trial lawyer must have the courage to explore his own innermostbeing in order to truly understand, and then to effectively communicateto the audience of twelve, the forces at work in the humandrama that led up to the dispute being litigated in the courtroom.Because when it comes time to represent the client in this civilizedform of combat, the trial lawyer must communicate to the jury in anauthentic way, from a vantage point of genuine understanding andempathy. If the jury sees the trial lawyer as nothing more than amouthpiece, a person who will use words only to manipulate ratherthan to reveal deeper truths, then the jury will never trust that lawyer;and without trust, there can be no truthful communication; andwithout truthful communication, there can be no persuasion. Moreover,when the trial lawyer engages the trial process as an authenticperson, when he presents his case as if it somehow is an exercise inhis own self-awareness, a project of self-knowledge, the jury cannothelp but become enraptured by the drama that underlies the dispute.Every trial, because it is rooted in conflict, is a drama that has theingredients to captivate. And all good drama is self-revelatory.

The process of getting inside the emotional core of a case so asto transform it into your own client's battle of good against evil, andof arriving at that crucial point of authenticity in a trial, begins themoment the client enters the trial lawyer's life.

***

Unfortunately, capital defendants are often defended by shockinglyincompetent lawyers. Some have been known to sleep through partsof the trial; some have showed up drunk, high, or hungover; somehave spoken ill of their clients, virtually inviting the jury to executethem; some don't even speak on their behalf at all. Few try to understandthe client. In Texas, a model jurisdiction for advocates ofgovernment-run death machinery, lawyers jokingly refer to the "mirrortest" as the barometer for determining whether a defendant has beendenied constitutionally adequate counsel. If you put a mirror underneaththe nose of the attorney and it fogs up, the constitutional requirementof effective assistance of counsel has been satisfied.

Anthony Jackson, Mumia's court-appointed lawyer, was far fromthe bottom of the barrel. He was admitted to the bar in July 1974, aftergraduating from Temple University's law school. Before law school, hehad worked in the Philadelphia police department as an evidence technician,storing crime scene evidence for possible use at trial, photographingcrime scenes, and conducting fingerprint tests. He also spent afew years working as an investigator for the public defender's office andfor private criminal law practitioners. At the urging of a local criminaldefense lawyer (who, by coincidence, handled Mumia's appeal after histrial), Jackson applied to law school. He entered into his legal trainingwell suited to the rough-hewn world of criminal law.

One of the few black law school graduates in Philadelphia at thetime, Jackson took his first job as a prosecutor with the Philadelphiadistrict attorney's office. He became a prosecutor somewhat reluctantly.While in law school he took a criminal law seminar taught byArlen Specter (later to become a U.S. senator), and he submitted apaper dealing with the scarcity of black prosecutors in the UnitedStates. As a result of that paper, Specter invited him to join the districtattorney's office in Philadelphia. According to Jackson, "it was probablythe last place I thought of working, but I guess to some extent Iwas a little bit embarrassed about it so I did take the job." Jackson'sheart, however, was never in the work. He didn't have the prosecutorialmind-set that admires orderliness over compassion, accountabilityover empathy. Prosecutors disdain excuses, scoff at humanweaknesses, and treasure the slippery notion of individual responsibility.Jackson naturally leaned toward the underdog and empathizedwith the frailties of the human heart. He was compassionate by nature,given to exhibitions of emotion at the drop of a hat-not qualities adistrict attorney wants in young prosecutors. "I didn't like prosecutors,"Jackson bluntly admits. He was a prosecutor for only sixmonths.

After a few years working to reform the Philadelphia prison sys-tem, Jackson took a job in 1978 with the Public Interest Law Centerof Philadelphia (PILCOP), an organization dealing with, among otherthings, police brutality in Rizzo's Philadelphia. "It was funded by theLaw Enforcement Assistance Administration," Jackson explained incourt testimony in 1995. "It was specifically funded to explore avenuesof increasing police-community relations; ... we were trying to createan avenue for citizens here in Philadelphia to file complaints and havethem meritoriously examined." In fact, Jackson, who became the directorof PILCOP, was actively involved in the grassroots work behindthe Justice Department lawsuit filed against the city of Philadelphia,Mayor Rizzo, and others.

Well-known as an active player in the fight against police abusesin Rizzo's Philadelphia, Jackson had been approached by concernedfriends of Mumia to visit him while he was recuperating in the hospital.He didn't know if the visit would lead to an attorney-clientrelationship; he didn't actually consider it seriously, as he was stillwith PILCOP and had not yet set up an office for private practice.As it turned out, because Mumia was in no condition to seek out alawyer himself, and because the arraignment on the murder chargewas to happen within a day or so, Jackson accepted an appointmentfrom the court to handle the case.

There was no mistaking it: Jackson was overwhelmed with burdenswhen he took on Mumia's case on December 12, 1981. Havingbeen out of private practice for three years, he didn't have file cabinetsfilled with case files. In fact, Mumia's slim file was one of the firstcases he acquired, and he had a "Mumia" file even before he had anactual office. It took Jackson over a month after taking on the appointmentto set up an office. With no money coming in, no officesupport, and unaware of what he was getting into, Jackson was destinedto hit stormy weather right from the beginning.

***

Jackson straightened his tie as the elevator made its way to the sixthfloor of the city hall building. There would be television cameras inthe hallway, he figured, and he wanted to look presentable. He hadnot dived into the case as of yet-too busy setting up an office andscrambling for new business-and his client was still recuperatingfrom his injuries. A month had not yet passed since the killing ofOfficer Faulkner. Jackson was not without a plan for the morning'scourt appearance, however. He had a client who claimed he was brutalizedby police; the first order of business, he concluded, was todocument those injuries in the court record.

He stepped out of the elevator, walked down the hall, turned thecorner and headed toward Courtroom 613. The camera lights beamedin his direction as he moved closer to the entrance door, but he wavedthe reporters away. There would be time enough for talking with themlater. The court clerk had been waiting for him. The prosecutor, JosephMcGill, was already present, sitting at the prosecutor's tablethumbing through a sheaf of papers. Jackson greeted his adversary inhis customary friendly fashion, and the two talked brieRy at the railingseparating the spectator section from the well of the courtroom wherethe combatants duel over truth and justice. McGill was considerablytaller than Jackson, with gray hair, a penetrating stare, and an aristocraticbearing. His salt-and-pepper mustache dominated his long,narrow face, giving him a severe look. He casually remarked that, forthe time being at least, Mumia's brother would be a codefendant inthe case, although he was not charged with the homicide. Jackson hadnot known that.

"Step up, Mr. Jackson," the judge said in a friendly tone. He thendirected his clerk to call the case.

"Your Honor, we're prepared to proceed with the preliminaryhearing," McGill quickly announced. A preliminary hearing is a pro-sufficient evidence (probable cause) to detain the defendant for trial.

Jackson did a double-take. What preliminary hearing? He quicklystammered through an explanation that his client remained in thehospital, having sustained, aside from a gunshot wound, "injuries allabout the body," including contusions and lacerations. He told thejudge he wanted photos to document those injuries.

Judge Paul Ribner, a rugged, tough-talking criminal court jurist,wasn't interested in exploring Jackson's request. He wanted to knowif Jackson was ready for the preliminary hearing. Usually the preliminaryhearing is a routine matter, with the defense attorney playinglittle or no role other than to gather as much information as possiblefor eventual use at trial or as an aid to conduct an investigation.Jackson was, nonetheless, not prepared to handle a preliminary hearing.It was a Tuesday. He had mistakenly thought that the preliminaryhearing was scheduled for that Friday, January 8. On top of that, hetold Judge Ribner that he wouldn't be ready on that day either, becausehe had scheduled another matter to attend to in Manhattan.

After having spent the past three years doing civil litigation, Jacksonhad forgotten about the rigors and pacing of criminal defense practice.In civil litigation, a month is a blip in time; in capital litigation, whereimmediate investigation is key to putting together a defense, a monthof inactivity, especially if it is the first month after the commission ofthe crime, can be cataclysmic. Witnesses can be lost, stories begin toharden, crime scene evidence is used up in laboratory testing. Homicideinvestigators are already deep into the investigation well beforea criminal defense lawyer even meets his client. The first month in amurder case for a defense lawyer is catch-up time.

"Well, this is the kind of case you want to keep on top of," Ribnercautioned. Not at all pleased with Jackson's ill-preparedness, Ribnerinsisted upon proceeding on the eighth.

Expecting that the judge would accommodate his scheduling conflict,Jackson was caught flatfooted. 'Tm now finding out that thismatter is listed for the eighth and I am now told today for the firsttime, for the very first time, that there's a codefendant in the case."

"You are a smart defense lawyer, Mr. Jackson," Ribner chided."But when you tell me that you didn't know there was a codefendantin this matter-well, all I can say to you is you'll have to spend alittle more time on this case. Check it out, before you get to a hearingin this matter." The judge leaned forward and looked squarely atJackson. "You have a big murder case here, and you'll have to keepon top of it. Because this case is going to get a lot of exposure in thecommunity." Ribner could see that the courtroom was divided downthe middle, white faces on one side of the aisle, and black faces onthe other. "I know there are certain cases that have explosive tendenciesin the community. And this is one of them." He had no ideahow prescient those words would become.

On Friday morning, Jackson rushed out of his house to get tocourt on time, not wanting to irritate Judge Ribner further. He arrivedin Courtroom 613 and discovered that his rushing was in vain becauseRibner wasn't presiding over the preliminary hearing. It would beJudge Edward Mekel, a far more laid-back jurist. That wasn't the onlysurprise for the morning. He went into the lockup to talk with Mumiaand found him dressed in a white hospital gown. Mumia had fallenill the night before and had to be taken to the hospital. He wasbrought to city hall directly from the hospital. Jackson knew thatMumia would not be forced into appearing in open court wearingonly the gown. He was about to get his first lesson about his client.

Mumia had been offered prison clothes to permit him to appearin open court. Mumia was adamant: no prison clothes in court. Prisonguards informed Judge Mekel of Mumia's refusal to accept prisongarments. Agitated, Judge Mekel nonetheless avoided a power strugglewith Mumia. Instead of suspending the proceedings for the day orforcing Mumia to make the choice of foregoing attendance at thepreliminary hearing or acquiescing on the issue of prison garb, he sentthe sheriff to a local store to buy clothes for him so the proceedingscould begin without unnecessary acrimony. Rumors circulated amongthe reporters that McGill gave money to the sheriff for this unusualshopping spree.

Four hours later, Mumia entered the courtroom wearing brownpants and a brown plaid shirt. It wasn't his style of clothing, but thesheriff wasn't interested in fashion when he bought them. Mumia tooka seat next to his brother. It would be the last time the two brotherswould ever sit next to each other. Billy Cook adored his older brother,looking upon him with a fond reverence because Mumia, unlike himself,seemingly had a bottomless reservoir of God-given talent and atrajectory to his life. Cook discarded his first name and began callinghimself Wesley after Mumia ceased using the name. Cook told hislawyer that he used the name Wesley out of love and admiration forhis brother.

Cook stared blankly at the wall behind the judge. Mumia sat withhis usual posture, slightly bent forward and chin resting against claspedhands, as if listening to an interesting story. But the story was not onethat pleased Mumia, or his brother for that matter. Cynthia Whitewas on the stand-the first witness called by the prosecution in thepreliminary hearing.

Her testimony was brief-typical for a preliminary hearing. Prosecutorsare reluctant to have witnesses put their stories on the recordbefore trial. The more times a witness provides details of an incident,the greater the likelihood that an inconsistency will surface, and inconsistenciesare the lifeblood of criminal defense work. Criminal defenselawyers seize upon inconsistencies, twirling them in the light likea jagged crystal to find that perfectly beautiful refracrion of light thatmight induce the jury to find reasonable doubt.

White's story at the preliminary hearing was, in its broad outlines,the story she was to give to the jury six months later. She spoke ofthe Volkswagen being pulled over; Billy Cook and Officer Faulknerwalking over to the front of the patrol car; Cook hitting the officer;and most crucially, Mumia darting from across the street to shoot atthe officer, several times, with the coup de grace as the officer layhelpless facing the dark December heavens. She claimed never to haveseen any violence inflicted upon Cook, a claim she was to adhere toat the trial.

Jackson began his cross-examination with the expected goal oftrying to tease out as much detail from White as the judge wouldallow. Cross-examination in a preliminary hearing is not really crossexaminationas trial lawyers conceive of it. It is usually a cat-andmousegame with a judge: the defense lawyer trying to ask as manyquestions about the details of a witness's story (that is, to "discover"information), and the trial judge, prompted by objections from theprosecutor, looking to keep the questioning confined (that is, to blockdiscovery). Suggestive of Jackson's early lack of preparation, he mistakenlyreferred to Cynthia White as Miss Washington until she summonedthe coutage to correct him. "Excuse me, it's Miss White," shesaid meekly. Jackson sheepishly apologized.

The preliminary hearing generated one inconsistency that illustratedthe malleability of White as a witness, which was to become amajor aspect of Mumia's legal struggles later on. White insisted thatMumia had a gun in his left hand as he scurried across Locust Streettoward his brother. McGill was probably displeased with this description,as Mumia had a holster on his left side, which would suggestthat he would have grabbed his gun with his right hand (Mumia isalso right-handed). It appears that the difficulty was ironed out, asWhite testified at trial that Mumia had the gun in his right hand, nothis left.

When White finished testifying, Maureen slipped out of the courtroom,still crying.

McGill then called a law enforcement witness to testify, and whathe had to say was undoubtedly significant. Inspector Alphonse Giordano,a veteran officer in the Rizzo mold who, as a onetime commanderof the Stakeout Unit, despised everything about MOVE,lumbered up to the witness chair and rested his full frame comfortablyas he waited for the first question. McGill called Giordano to thestand to establish that Mumia had admitted to the shooting. ButGiordano's testimony about a confession was not the confession thatthe jury was to hear about at the trial. Giordano explained that heentered the police wagon where police officers had placed Mumia. "Iasked him if he was hurt," Giordano explained. "As I opened his coatup I noticed a shoulder holster under his left armpit that was empty.I asked him where's the gun from the shoulder holster."

"What did he say?" McGill prompted.

"His response, 'I dropped it beside the car after I shot him.' "

It would be a fair question to ask why Giordano's "confession"testimony was not later presented to the jury. Prosecutors don't forgosuch damning evidence unless its costs seriously outweigh its enormousand obvious benefits. The answer to this mystery was to beanswered on the first business day after the trial concluded. On thatday, Giordano was relieved of his duties in the police department,disgraced by suspicions of corruption. Giordano was later indicted oncorruption charges arising from a highly publicized scandal involvingextortion and financial kickbacks received from prostitutes, pimps,sleazy bar owners and the like that rocked the Philadelphia PoliceDepartment. The federal investigation revealed he had been receivingupward of $3,000 a month in illegal payoffs. He ultimately pled guiltyto tax fraud based upon his receipt of these payoffs. Giordano wastainted goods; McGill evidently couldn't use him at trial.

With these two witnesses establishing probable cause, McGillrested his case. The defense was under no illusions about the judge'sdecision: Mumia would be held over for trial. The next issue was tobe bail.

That bail was even an open question is remarkable. Capital defendantsdon't secute bail-at least, they're not supposed to. Jacksoncalled two witnesses at the bail hearing. Mumia's mother, Edith Cook,testified that her son would be staying with her if he could secute hispretrial release. The other witness was a journalism colleague, TimothySt. Hill. St. Hill had known Mumia for fifteen years and was the onewho nominated him to be president of the Association of Black Journalists,a position Mumia held in 1981. Thinking bail was out of thequestion, McGill didn't feel the need to challenge their testimony.

Judge Mekel thought otherwise. He set bail at $250,000.

There was no way the district attorney's office was going to letthe bail order stand, as miraculous as it was. McGill immediately wentback to his office and slapped together a motion to revoke the bailorder; he then arranged for the placement of the case on the Mondaycalendar.

Jackson and Mumia were back in court on Monday, this timebefore Judge Ribner. Whatever prompted Judge Mekel to look favorablyupon Mumia would not have that effect upon Judge Ribner, andMcGill knew it. McGill had no doubt that bail would be revokedcompletely by Ribner, and by the end of the day, it was. But onejudge will not simply override another of his colleagues; there has tobe some face-saving rationale to smooth over the bruised egos thatinevitably Bow from one judge's encroachment upon another judge'sexercise of discretion. Understanding this, McGill and Jackson hadwitnessed lined up to testify. Judge Ribner made the point very clearas well: "I am not going to change another judge's order without afull hearing, that's definite." A hearing, with new witnesses, wouldprovide the cover needed to override another judge's decision, givingthe whole process a patina of legitimacy.

The district attorney's office was not the only entity bent on gettingthe bail revoked. In its first of many acts taken against Mumiaover many years, the Fraternal Order of Police-the FOP for shortdispatcheda telegram to Judge Ribner. The telegram urged him torevoke Mumia's bail, a highly improper move for obvious reasons.McGill claimed to know nothing about this communique. Judge Ribner,for his part, tried to assure the defense that the telegram shouldnot provoke alarm. "It doesn't affect me," he pledged. "It doesn'tprejudice me toward the sender, will have no effect on anything I dohere."

McGill chimed in: ''I'm sure it will have no effect, Your Honor."

That Jackson had the wherewithal to call witnesses supportingMumia's right to bail, when it was patently clear that it was a futileexercise, was, in retrospect, an oddity in the case. Jackson would hardlyexhibit a fraction of that sort of vigilance later in the trial when itwould have mattered much more. The witnesses Jackson did call werenot typical of defendants accused of killing cops. But Mumia was noordinary defendant, that much was clear.

Jackson called several prominent Philadelphians to the stand. StateSenator Milton Street had known Mumia for over ten years when hewas called upon to tell Judge Ribner about his friend's commitmentto social justice and community renewal. Mumia was highly sensitiveto Philadelphia's delicate racial affairs, Senator Street explained, andhe was one of the few young black men in the city willing to makerace a topic of public debate. The senator testified that he had "neverknown Mr. Jamal to be a violent person."

Jackson called another local politician to vouch for Mumia. LikeSenator Street, State Representative David Richardson was confidentthat Mumia would honor his commitment to appear for trial. He hadknown him for seven years, often working with him on matters ofcommunity affairs. Representative Richardson echoed Senator Street'stestimony that Mumia was not a violent man.

Although McGill knew that the bail hearing was but a formalisticprelude to the revocation of bail, he still took the opportunity to crossexaminethe two politicians. McGill's approach to these witnesses provideda glimpse into his thinking about the motive behind theshooting of Officer Faulkner, and it foreshadowed how he would pitchthe case to a juty-to the right kind of jury, that is.

McGill wanted to know whether they had read or heard Mumiamake statements indicating hostility toward the police. They hadn't.McGill broadened the inquiry: had they known that Mumia was aonetime member of the Black Panther Party? Were they aware ofstatements he made while associated with that organization? Had theyever discussed with him his affiliation with, or sympathy toward, theMOVE organization? At one point in the questioning of RepresentativeRichardson, McGill tried to confront him with a quotationattributed to Mumia contained in a newspaper article. Judge Ribnercut McGill off. McGill would try again later ... much later. He wasgoing to use this newspaper article; he was sure of it.

McGill cared little about the answers these witnesses gave; hecouldn't resist making a point, and he didn't want to wait until trialto make it. According to McGill's way of thinking, Mumia was apolitical radical with ties to what he regarded as dangerous black nationalistgroups who had no qualms about gunning down the guard-ians of a hated "system" that supposedly oppressed people of colorthroughout the world. Officer Faulkner was a victim of radical racepolitics, no less than was Officer James Ramp. McGill, unlike Jackson,was getting to the core of the case early, fleshing out the good-versusevilstory he would later tell the jury. He just needed to make surethat he was going to get the right kind of jury to accept his story line.Getting the right kind of jury was important, probably the most importantthing McGill had to do to secure Mumia's conviction andput him on Pennsylvania's death row.

***

The media took a keen interest in the case, unsurprisingly, and thatconcerned Mumia. He understood instinctively that jury selectionwould be critical. Concerned with having a panel of whites with preconceivedideas about his dreadlocked appearance, Mumia urged Jacksonto do something to protect the jury pool. In a court appearanceon February 22, Jackson told Judge Ribner that there was a "practicalproblem" that had to be dealt with: Mumia didn't want to be photographedeach time he was escorted down the corridor to appear incourt. A onetime courthouse journalist, Mumia understood the powerof those images of him in handcuffs. It would be tough to select animpartial jury with that image splashed on newspapers and beamedinto the television sets of a curious Philadelphia citizenry.

"It's a circus-type atmosphere," Jackson complained, "and I don'tthink it's necessary." If only Jackson knew what was in store.

Jury selection was still months away. A lot had to be done in themeantime, but those things would have to wait. Like many overburdenedsolo practitioners, Jackson had a myopic outlook on hispractice: cases that were months away from trial sat tucked away in afile cabinet while tasks that should have been completed last weektook up his full attention. He would come up with a defense beforetrial; he was sure of it.

To the extent that Jackson ruminated about his strong-willed client,he thought about prosecution witness Cynthia White. How washe going to deal with her eyewitness account? Jackson knew therewere other eyewitnesses, but he only thought of White because shewas the only one, as of the winter of 1982, to have taken the standand put on the record what she had supposedly seen.

jackson was appropriately suspicious of White, as he knew fromexperience that Philadelphia law enforcement had a history of manipulatingprostitutes. He was aware of the talk about police corruptioninvolving extortion and kickbacks from prostitutes and pimps. In May1981, the Federal Bureau of Investigation began an undercover investigationof the interconnection between Philadelphia police and thecity's prostitutes. The investigation, which was highly publicized, focusedon the Sixth District, where the Faulkner shooting took place.It produced a mountain of evidence revealing deep-seated corruption;numerous officers (including Inspector Giordano) were indicted, andmany of them convicted. jackson had no way of knowing for surewhether White was somehow ensnared in this web of corruption.

jackson certainly allowed for the possibility that White, being avulnerable young prostitute, had been manipulated to supply damningtestimony, and surmised that she might not be able to identifY Mumiain a lineup. He had decided to file a motion seeking to compel herto make that attempt. Searching for some legal hook to justifY alineup, he argued that this identification procedure was necessary becauseWhite initially described the man darting across Locust as havingdreadlocks and the shooter having a hat on. According to jackson thissuggested that another person was at the scene, aside from the officer,Mumia, and his brother. McGill protested. A lineup was unwarranted,he countered, because the defense could cross-examine White at trial.judge Ribner then interjected with a curious remark: White wasn't apivotal witness, but only "a link in a chain of evidence." McGill saidnothing to correct Ribner, even though, in fact, White was to be themost pivotal prosecution eyewitness at the trial. The prosecutor didn'twant his witness subjected to a lineup, and that's usually enough fora criminal court judge. jackson's motion was denied.

Mumia took notice.

_______________

Notes:

i. People often pronounce the name with the accent on the second syllable, thus, 'MuMEEa'.Mumia himself puts the accent on the first syllable.

There can be no equal justice where the kind of trial aman gets depends on the amount of money he has.

-- JUSTICE HUGO BLACK, GRIFFIN V. ILLINOIS

People with a lot of money are always going to getbetter services. But we aren't in the business ofcorrecting every social problem.

-- PHILADELPHIA JUDGE DAVID SAVITT

5.THE STRUGGLE FOR MONEY

Of the nearly 3,700 inmates on death row today, most wererepresented by lawyers with deficient skills in capital litigationand handicapped by limited resources-a truly deadly combination.

The problem of inadequate resources and counsel in capital litigationhas always coexisted with capital punishment in this country,first coming into sharp focus in the famous 1932 Scottsboro Boyscase. The American Bar Association conducted an exhaustive study,published in 1990, of the impact of underfunded counsel on the applicationof the death penalty. It concluded, in the cautionary languagecustomary of elite members of the bar, that "the inadequacy and inadequatecompensation of counsel at trial" was one of the "principalfailings of the capital punishment systems in the states today." [1]

The heart of the problem is money. Prosecutors have it, capitaldefense lawyers don't. District attorneys' offices are funded with publicmoney, and no one bats an eye. Too often defense lawyers with clientsfacing death do not even seek out money for experts, either becausethey're ignorant of the process or because they have become too jadedto try. Judges, ordered to be budget conscious and thus looking forany excuse not to authorize the release of funds, consistently demandthat the defense lawyer explain precisely why an expert is needed. Thedefense lawyer, caught in a catch-22, often cannot articulate the needbecause he doesn't have the money to consult with an expert to learnif expert consultation and testimony will be useful in a case. And thenthere is the situation where the court grants the defense a sum ofmoney, but it turns out to be such a pittance that no expert wants toget involved. God forbid that a lawyer ask for appointment of anotherlawyer to help in the preparation of a defense. As death penalry expertStephen Bright noted: "Although it is widely acknowledged that atleast two lawyers, supported by investigative and expert assistance, arerequired to defend a capital case, some of the jurisdictions with thelargest number of death sentences are still asking only one lawyer todefend a capital case." [2]

Who gets assigned to handle capital cases is often determined withmoney in mind. In death penalty jurisdictions where fairness has notcompletely been dispensed with, the state legislature allots funds forthe creation of an indigent defense program equipped to handle capitalcases. New York and California are two such jurisdictions with admirablestaffs of committed and extremely talented lawyers, investigators,and mitigation specialists. But in too many jurisdictions, andPhiladelphia was one of them at the time of Mumia's trial, judgessimply appoint private practitioners to take on capital cases, regardlessof competence and training. Because the pay is atrocious, and delayedin coming, typically only the least talented members of the trial barmake themselves available for capital cases. The court-appointmentmethod is favored by some jurisdictions because the costs of sustainingan ongoing office committed to excellent representation is far moreexpensive than the episodic payment to private, financially strappedlawyers.

Judges often look to the least qualified members of the trial barto take capital cases-the so-called courthouse hacks who hang outdaily at the criminal courts building. They often shun calling uponother members of the bar, because they don't want to impose on theirbusy lives dedicated to making money. In any event, the reasoninggoes, why not appoint a lawyer who is more than happy to take anassignment for want of any other legal business?

Anthony Jackson was a quintessential candidate for court appointmenton a capital case. He needed clients and he needed to be a teamplayer within the Philadelphia criminal justice system in order to surviveeconomically as a defense lawyer.

***

It was inevitable that Jackson would plead for money. Plead is theright word. In Philadelphia, like the worst jurisdictions in the South,money for justice was scarce. Jackson needed to hire an investigator,a ballistician, and a pathologist, but he could do so only through thebeneficence of stingy, budget-conscious judges working within amunicipality starved for revenues. At the time, the practice in thePhiladelphia courts was to allocate a fee of $150 per expert or investigator,doling out slightly more on an ad hoc, unpredictable basis.Under this system, either the defense lawyer had to convince expertsand investigators to provide their services and risk never being paid afull fee, or the lawyer himself would pay for their services out of hisown pocket and assume the risk that he would never receive full reimbursement.

Jackson cynically regarded the whole process as a sham, and withgood reason. One Philadelphia trial judge, David Savitt, crystallizedthe judicial attitude at the courthouse: "People with a lot of moneyare always going to get better services. But we aren't in the businessof correcting every social problem." Administrators in city hall madeit clear to Philadelphia judges that money was scarce. Judge WilliamManfredi, the onetime presiding judge of the Philadelphia HomicideCalendar who allocated resources in death penalty trials, described thejudges' job as balancing "the competing interests of quality representationwith the economic situation of Philadelphia." Given Philadelphia'sdire economic straits, the scales were heavily tilted away fromcapital defendants, a constituency with no political clout.

***

Jackson's problem with money at this juncture in the case, however,wasn't only whether he would get paid; it was also a matter of when.He understood from the complaints within the local defense bar that,in Philadelphia, court-appointed lawyers often wait rwo years beforetheir fee petitions are acted upon; and too often their requested feesare slashed by judges who care little about the economics of law practice.The same was true for experts and investigators. Word spreadrapidly among forensic specialists that itemized bills collected dust injudges' chambers for years before a fraction of the total was paid out.Few experts accepted court appointments in Philadelphia under theseconditions. That was Jackson's problem: he couldn't get any expertsto help him without payment up front, and he certainly was in noposition to pay for the experts himself.

On March 18, 1982-some ninety days after his appointment asMumia's lawyer-Jackson approached Judge Ribner for funds to hirean investigator. Calls were coming in to his office from people whoclaimed to have information about the shooting. Jackson claimed thatthe calls were too numerous for him to handle. An investigator wouldhelp, if only he could assure payment. Judge Ribner wasn't about toopen up the coffers for Mumia's defense, but he did obliquely assureJackson that additional funds would be released after services had beenperformed and itemized bills submitted. Jackson never took up thecourt's suggestion to get itemized bills because no one was willing totake the risk of not getting paid.

On April 29, Jackson was back in court pleading again with JudgeRibner for release of funds so that he could retain an expert, but theresults were the same. Trial was now around the corner, a little overa month away. It began to dawn on Jackson that he had not preparedas diligently as he should have. Panic had not yet infiltrated his consciousness,but that peculiar dread only a trial lawyer understandsbegan to usurp his mood. There is no place for a trial lawyer to hidein a courtroom; as with an athletic competition, he triumphs or failsin the open, and that fact alone is enough to provoke dread over anupcoming courtroom battle. But here, Jackson also had a man's lifein his hands, a vocal group of Mumia supporters eyeing his performance,calls coming in from people who claimed to have seen theshooting, and now, time was becoming a precious commodity. Jacksonneeded another attorney appointed to assist him.

"There is a problem in organizing the materials that I have beforeme, as well as preparing the appropriate research," he confessed."There is a great deal of work to be done, a great deal of informationto be developed, and I have some reservations as to whether or not Ican properly be prepared to go to trial within the next three weeks,or three to four weeks."

Mumia sat stoically, taking in the fact that his lawyer was askingfor a life raft to keep from drowning.

"Well, you'll have to work harder," Ribner advised.

"I have reams and reams of material to go through," Jackson continued,bypassing the judge's useless advice. "And that's my problem.Physically, Your Honor, I can do only so much. As Your Honor wellknows, I do have other trials."

Ribner told Jackson that he would have to juggle his schedule becauseMumia's case would not be delayed. It became apparent that Jackson'sopenness about his state of unpreparedness did not prompt thejudge to look for ways to ensure that the upcoming trial would be fair;rather, it only emboldened him to push for the trial to begin as quicklyas possible, the better to ensure that "justice" would be done.

"I am in the process of reducing my trial load, Your Honor, toallow me to prepare effectively for this matter." Jackson didn't wantMcGill to walk away with the impression that securing a convictionwas going to be easy.

It is virtual malpractice for a lawyer to handle a capital case alone."Two lawyers should always work on every capital case," Pittsburgh'sdirector of the public defender's office testified before the PennsylvaniaState Judiciary Committee. The American Bar Association standardsfor capital litigation call for two lawyers in recognition of the uniquedemands of a capital case. No corporate law firm representing a fee-paying corporate client, where mere money is at stake, would countenanceonly a single lawyer on any case of magnitude. In fact, acorporate litigator, even on a modestly complex project, would beaided by a slew of Ivy League graduates who have taken a scorchedearthapproach to the litigation.

Judge Ribner, however, was not sympathetic. "Well, I don't recall,in recent years, ever granting additional counsel in a murder case.Years ago we did. But later on, because of budget problems, we adoptedthe procedure of appointing one attorney." The scales, once again,tilted toward preserving the budget. "So unless there's something startlingabout a case, I'm not inclined to grant additional counsel," JudgeRibner explained.

Startling? Jackson wanted to know what kind of case would fitwithin that category, if not this one. Wasn't it enough that the Statewanted to kill his client? Ribner quickly changed the subject, assuringJackson that he would be paid for his time: "Keep a careful list ofhow many hours you put in, Mr. Jackson."

Ribner either was plain ignorant or simply not listening. Jacksonwasn't talking about getting paid; he was talking about getting help.He needed help because he faced a seemingly open-and-shut case andhe hadn't interviewed any witnesses personally. With no investigatorworking full-time on the case, Jackson was unable to contact the witnessesidentified in the hundreds of pages of police reports. Theiraddresses and phone numbers had been redacted and McGill refusedto disclose that information.

McGill wasn't doing anything underhanded in keeping this vital informationfrom Jackson. He was merely taking advantage of a Philadelphiacriminal justice policy. Jackson complained to Judge Ribner aboutit: "The situation is that by virtue of your policy, Your Honor, of notproviding me with addresses, I have a difficult time in locating many ofthese witnesses." Jackson also complained about McGill's insisten<;:ethat witnesses didn't want to talk to him in any event. By McGill's logic,Jackson really didn't need the addresses and didn't need to talk to thewitnesses, because they wouldn't give him the time of day.

Prosecutors generally don't see the value in an investigation by thedefense-at best, it's an annoyance; at worst, it creates the possibility offrightening off witnesses. Their attitude is, wait for the witnesses to testifyand then cross-examine them; no need to go out and interview themahead of time. To prosecutors, who rarely hone their cross-examinationskills (because they are rarely called upon to cross-examine), pretrial interviewsare only calculated to defeat justice by allowing the defenseattorney to get a preview of what the witness will ultimately say on thewitness stand, thereby improving the defense attorney's chances oftwisting the witness's words to suit his client's ends.

Defense attorneys, by contrast, make their living through crossexamination,and they know that a good cross-examination hinges onpreparation. The idea of a defense lawyer demolishing a witness beforea mesmerized jury with a spontaneous flurry of questions is the stuffof fiction. Cross-examination is the defense attorney's treasured opportunityto tell the jury aspects of the story that make up the client'scase. It is absolutely wrong-in fact, it courts disaster-to view it asan opportunity to ask questions in search of information. A goodcross-examiner will look upon the witness as a mere prop to tell thestory, not as a fount of information. Consequently, pretrial preparation-which means the acquisition of information-is the key to aneffective cross-examination.

Jackson had a specific reason for wanting to interview the factwitnesses, aside from its value as a preparatory tool. "In my view therehas already been some intimidation or misleading of the witnesses,"he announced provocatively. McGill let the statement pass withoutrejoinder when he realized Jackson would not amplify on the accusation.

***

For forty minutes on April 29, Mumia stewed as the judge and hislawyer talked past each other. Mumia was no novice to courtroomprocedure. He had covered the MOVE Nine trial fifteen months earlieras a sympathetic journalist. He had reported on other court proceedings.He knew that the Philadelphia justice system was notcommitted to ensuring that he would receive the minimal resourcesto mount a defense. Judge Ribner's reference to "budget problems"didn't surprise him. At the same time, he also knew that a trial lawyeris no magician. He needs information-from investigators and experts-to attack a prosecutor's case. He'd seen enough to know hewas being railroaded.

"You ought to try the goddamned case," Mumia yelled to JudgeRibner, perforating the delusion that this particular defendant wasgoing to acquiesce in an absurd charade. Jolted by the unexpectedverbal eruption, Jackson whispered aggressively to his client, "Mumia!"

Judge Ribner responded quickly, firmly, and in the only way heknew how: "Sheriff, put handcuffs on him."

Mumia's patience, eroding throughout the morning, had nowgiven way to a barrage of frustrated outbursts: "That's right, put thecuffs on. What are you afraid of, Ribner?" The judge ordered thesheriff to remove Mumia from the courtroom. "You go to hell!" heblurted out defiantly. "What the hell are you afraid of?"

Supporters who filled the small sixth-Boor courtroom joined in.One of the spectators stood up and walked into the aisle, yelling thatthe court system was "trying to railroad the man, there ain't no justice!"Meanwhile, Judge Ribner, safely elevated on the bench and protectedby armed court personnel, responded to Mumia, ''I'm not afraidof you!" The sheriff's officers quickly ushered the supporters out ofthe courtroom as they too taunted the judge. Shouts from the corridorcould be heard within the courtroom as Ribner, his face reddenedwith anger, tried to resume the session.

Mumia didn't offer physical resistance as he was escorted out ofthe courtroom. Judge Ribner tried in vain to act composed as if nothinghad happened. "It was not your fault," he assured Jackson. "I willnot let this affect my conduct of the case."

Jackson left the courtroom emotionally sapped. The morning'sfracas was, he feared, just a harbinger of what was to come. On theone hand, a trial with elements of MOVE politics could never besmooth sailing. On the other hand, he shared his client's frustration.He too felt the urge to curse the judge and the whole tightfistedjudicial system. The system would not allow for a fair fight, but itwould cynically gesture at the notion of due process so that the jurors,who would be nothing more than temporary guests in the dirty worldof criminal law, would come to believe that what they were witnessingwas American justice, the finest in the world, operating in the nameof law and order.

Reporters beckoned Jackson for a comment. Mumia's outburstwas a reaction to the "cavalier attitude" that he felt pervaded the waythe case was being handled, he explained. "There's a tremendousamount of work that still has to be done. My client is upset because hesees an attitude on the part of some others that it's no big thing .... Hislife is at stake."

Go into a criminal courthouse and observe the process-notthe trial process but the routinized pretrial process. Trials area rarity. The criminal justice system cannot be judged-ought not bejudged-solely by that extraordinarily rare event. To judge the criminaljustice system through observations of celebrated trials is akin toclaiming that you know all about the movie-making business becauseyou like to go to movies, or that you understand football becauseyou've seen the Super Bowl.

Sit in the spectator section of the courtroom and watch the pretrialprocess unfold with deadening monotony. I remember someone oncedescribing the process as being like a package express terminal. A caseis called out by a court officer and the file is handed up to the judge,who is much like a dispatcher routing the packages to their destinations.Two shipping clerks-the prosecutor and the defense lawyerbickerover what to do with the package, which sits inert awaitingresolution of its fate. The bickering typically leads to a plea of guilty,and the package is routed to some far-off destination. "Next case," thejudge declares, and another package is brought in.

Every so often-and it doesn't happen much, to be sure-a packagereveals itself as a human being, and a rebellious one at that. Thishuman being protests the package routing system. He announces thathe wants to take control over his fate within a rigid routing systemwhere obedience and silence prevail. He punctures the delusion of thedispatcher and the shipping clerks that what they are doing constitutesthe law in action. "Sit down and be quiet," the judge/dispatcher willdemand, offended by the awakening of the package. "This is a courtof law!"

***

On May 13, 1982, with pretrial hearings two weeks away, Mumiaresolved in his own mind that he would not allow himself to be apackage in a bureaucratic routing system.

The state of Pennsylvania had earmarked his life, one so full ofpromise, for extermination, and as the seasons changed from winterto spring, Mumia hurled closer to touching the raw nerves of existence-that moment in life, which so few of us ever experience andthus may never understand, where decisions and actions directly andconcretely affect whether one lives or dies. Whether from desperation,stress, or epiphany, Mumia drew closer to MOVE and took to heartthe "teachings of John Mrica." He would put his faith in those teachings,and the first public display of that faith would take place thatmorning.

Mumia stood before Judge Ribner and let the silence settle inbefore speaking. He appreciated the power of silence, that momentof anticipation before filling the room with the sounds of one's voice.Silence rivets the mind. A coterie of MOVE members sat in theaudience awaiting the announcement. Unlike the MOVE members,the news reporters had no clue that Mumia was going to pull thecase into a different direction. John Mrica taught his followers thatthe "system" has its own laws, but that nature's laws have a force alltheir own. When you acquiesce to the laws and legal procedures thatserve the "system," he taught, you relinquish the power within you.The teachings of John Africa dictate self-representation in a courtof law.

Mumia announced that morning, in his honeyed baritone voice,that he would, from that moment forward, handle his own case anddispense with Jackson's services. Judge Ribner hadn't expected thatsuch a request would be made, and he seemed to be caught off guard.This was, after all, a capital case, and it was no time for an attorneyto have a "fool for a client" -the worn-out opprobrium invoked whena defendant seeks to represent himself. He asked the defendant standingbefore him if he understood what that meant. The Constitutionrequired that Judge Ribner ask a litany of questions: Do you understandthat you have to follow the rules and procedures of this court?Do you understand that you will not be able to complain later that alawyer could have done a better job? Do you understand that this trialwill proceed without regard to your lack of legal training? All of thecaveats and warnings didn't dissuade Mumia from his decision. It washis life on the line; he'd see to it that it would be defended appropriately.

Mumia's decision would have huge repercussions on the trial proceedings.The Sixth Amendment to the United States Constitutionguarantees a defendant the right to represent himself. But constitutionalrights are often grudgingly recognized, and the right to selfrepresentationis no exception. Judges hate it when a defendantinvokes that right, because it bogs down the system. Attorneys, beholdento the operation of the court system, can be counted on tokeep the case moving along, a preeminent goal of a judge. An untutoreddefendant representing himself is only interested in his own fate;he could care less about efficiency and has no need to be a team playerin the criminal justice game. Judge Ribner wasn't pleased with whathe was hearing, but he had no choice other than to honor Mumia'srequest.

Jackson wasn't cut loose, however, much to his chagrin. He thought,when he heard the announcement, that this ordeal would be over forhim. Mumia wasn't a client who stood by silently as his lawyer(mis)handled the case. He was a demanding client, the type thatprompts shudders in a criminal defense lawyer. They joke at conferenceswith other colleagues about the difficulties of having a demandingclient and daydream about how much easier the practice of law wouldbe if their clients weren't so damn demanding.

Mumia was more than a demanding client. He brought to thetable a blending of intelligence and skepticism. He asked questions,and if the answers didn't make sense, he said so. He wanted to seeall of the police reports, and he wanted to know why certain thingswere done, and why other things weren't done. He didn't trust lawenforcement to disclose all of the evidence, and he knew better thanto assume that the district attorney's office would play fair. Mumia'sexperiences as a journalist, and even his experiences with the BlackPanther Party, had taught him to be skeptical.

Jackson's difficulties extended beyond client relations. The MOVEorganization, still embittered over the conviction and incarceration ofthe MOVE Nine, rallied to Mumia's defense. Their members wereconspicuously present at each and every court session in large numbers.Several MOVE members watching Mumia declare his intentionto represent himself pursuant to the teachings of John Africa wouldperish, three years later to the very day, in a police firebomb attackon their home on Osage Avenue, resulting in the horrific deaths ofsix adults and five children. But for the time being, they, too, scrutinizedJackson's performance, and, by his lights, made ridiculous demandsupon him. Additionally, the media was still going crazy overthe case. Television cameras and reporters stood outside the entrancewayto the courtroom at every appearance. It was all wearing himdown, and he wanted out.

Jackson made a motion to Judge Ribner asking that he be freedof his professional obligations to Mumia. The judge flatly rejected themotion, knowing that it would only inject more chaos and delay intothe case-the twin evils in the criminal justice system from a judge'sperspective. He ordered Jackson to remalll as backup counsel. Thenotion of backup counsel is not taught in law school or in continuinglegal education seminars. No one really has a clear notion of what itmeans. It suggests that the lawyer is there to help the untrained (andfoolish?) client sidestep the legal landmines that populate the terrainof a trial. But how that assistance is to be given is largely a matter leftfor the defendant and his backup counsel. One thing is certain: beingbackup counsel is a terribly frustrating experience for a trial lawyer.Trial lawyers, almost by instinct, critique other trial lawyers in action,often quickly jumping to the conclusion that they could do it better.So the frustration is all the more acute when the "lawyer" conductingthe trial is an untrained lay person.

Mumia understood fully that Jackson wanted to be removed fromthe case, and that troubled him. He wouldn't go to a doctor whoexpressed reservations over providing treatment; he wouldn't even al-Iowan unwilling mechanic to fix his car. He surely wasn't inclined tolet a lawyer who virtually begged to be relieved from the case to remainby his side when the State was trying to take his life. "I am faced withan attorney who has said in full court that he is not functioning asbackup counsel," Mumia explained to Judge Ribner.

"So?" the judge replied.

For an instant, Mumia was puzzled. "I need an attorney who'scomfortable doing that," he continued. "As 1 expressed, 1 worked veryclosely with Mr. Jackson but 1 feel it is now time for me to defendmyself." Ribner remained silent. "My point is that if 1 have a courtappointedcounsel assigned as backup counsel who has expressed hisinability to function in that role, then our relationship is compromised.My ability to depend on his resources is compromised."

The judge was not impressed. Jackson had been on the case forover five months; the machinery of death would not be stopped toallow another lawyer to come on board, with all of the associateddelays, simply because the defendant was not satisfied with having alawyer who wanted out of the case. He was stuck with Jackson, andJackson was stuck with him. Neither was happy.

***

While Jackson was still fuming over being backup counsel, McGillcouldn't have been more pleased. After the May 13 court appearance,the case was transferred for trial to the Honorable Albert F. Sabo.

Prosecutors in the Philadelphia district attorney's office loved tohear those two syllables, "Sa-bo." fu one former prosecutor remarkedto an investigative journalist looking into Saba's record as a judge,"getting sent to Saba is like a vacation for prosecutors." Philadelphiadefense lawyer Mark E. Gottlieb characterized Judge Saba as a favoriteamong prosecutors, saying, "I don't think there was anyone you wouldbe happier with [as a prosecutor]." Gottlieb was in a good positionto know: he once served as head of homicide prosecutors in the Philadelphiadistrict attorney's office.

The son of immigrants and the first judge of Slovak heritage toascend to the bench in Philadelphia, Albert Saba initially wanted tobe an FBI agent, but at five feet four, he was too short. For sixteenyears before becoming a judge, he served as legal advisor to thesheriff's office. Sitting as a homicide judge for two decades-he wasforced into retirement against his will in January 1998, for budgetaryreasons-he had sentenced thirty-two people to death, far more thanany other judge in the country. Forty percent of all death sentencesin Philadelphia were meted out by Judge Saba. One-fifth of all deathrow inmates in Pennsylvania stood in Judge Saba's courtroom whenthey heard their fate. Ninety-two percent were black men. Whatmakes this all the more remarkable is that Judge Saba had heard fewerhomicide cases than many of his colleagues. No one familiar with thePhiladelphia court system ever wondered why Judge Saba was calledthe king of death row.

"I've never lost sleep over sentencing defendants to death," JudgeSaba told one reporter. "I sentence 'em and I forget about 'em."

Defenders of Judge Saba, such as Philadelphia district attorneyLynne Abraham, are fond of pointing out that in Philadelphia, as inmost jurisdictions, it is the jury that ultimately decides whether adefendant should be sentenced to death. Judge Saba merely carriesout the will of the jury, the argument goes. This argument overlooksthe enormous impact of a judge on the outcome of a case. There isa myth that "truth" filters to the top through the adversarial battlebetween litigants, and the judge merely referees the contest. The judge,according to this myth, keeps the contestants in line with his fidelityto the "law." The "law," of course, is perfectly neutral in this mythicconception of the judicial system.

This myth acquires its force in the public consciousness, in part,through the symbols that dominate a courtroom. The judge sits abovethe fray, looking down upon the trial lawyers as they supposedly battleover their contested versions of the "truth." The judge wears the blackrobes, with the United States flag on one side and the state flag onthe other. On the wall above his head read the words, "In God WeTrust," or some such slogan. When the judge rules upon a questionof law, he does so with an aura of detachment.

The defenders of Judge Sabo who claim that the aspersions thrownhis way are unfair rest their argument upon this myth of neutrality anddetachment. Criminal defense lawyers who have appeared before JudgeSabo know better. One local lawyer told a Los Angeles Times reporter,"When you are a defense lawyer and you are in Sabo's courtroom, youare playing an away game. You are not with the home team."

The Philadelphia Inquirer conducted a study of Judge Sabo's trials.Published in a Sunday edition on September 13, 1992, the piece notedthat in "case after case ... the judge, through his comments, his rulingsand his instructions to the jury, has favored prosecutors." Thesrudy indicated that Sabo would not shy away from providing adviceto a prosecutor to enhance the chances of a conviction. Prosecutors,the study noted, often had to restrain Judge Sabo, for fear that hewould go overboard and jeopardize a conviction, something that Mc-Gill would do several times during the trial. Such concern was amplyjustified: no judge in the United States competed with Judge Saba inthe percentage of capital cases reversed on appeal.

Judge Sabo's record as a jurist has also provoked consternationfor its palpable racial overtones. Duquesne University law professorBruce Ledewitz studied Judge Sabo's record as a presiding juristover capital cases through the prism of race and concluded that itwould be "unacceptable in the worst Southern death-belt states.... "In its publication, justice on the Cheap: The Philadelphia Story, theWashington-based Death Penalty Information Center highlights JudgeSabo's death-penalty record to exemplify the destructive influence ofrace in the implementation of Pennsylvania's death penalty.

The Philadelphia Inquirer ran another story, approximately a yearafter Mumia's trial, indicating that one-third of the attorneys whoparticipated in a survey rated Judge Sabo as "unqualified" to be ajudge. The relevance of this anecdote, however, is not only in thesurvey results but also in Judge Sabo's unguarded response to them.He remarked, upon hearing of the results, that if he were a defenseattorney, "I wouldn't vote for me either."

***

As the reality of the trial loomed, Jackson's displeasure over beingbackup counsel gradually took root in his anxieties over money. Hehad too many other commitments-such as making money to fundhis law practice and pay his personal bills-to sit through a trial. Hecouldn't tell the judge that money was the reason he wanted out.He argued instead that he didn't know how to be backup counsel.He spoke in his customary rapid spurts, but with a noticeable edgeof desperation in his voice.

"I have not been trained as backup counsel," Jackson warned."Your Honor would be placing me in a situation I am unfamiliarwith. I have never done this before and I am not sure, feeling that Iwould be effective in providing-"

Sabo had a point, which Jackson couldn't deny. He would onlyhave to sit at the defense table and provide advice episodically, ifMumia was amenable to soliciting it-and that was his choice. But itwasn't the intrinsic difficulties with dispensing advice, of course, thatprompted Jackson's desperate plea. It was this case, with the pressuresattendant on it, especially the inordinate attention it was receiving.He knew where the case was heading: it would be a circus, filled withdiatribes and ranting from the spectators. It was destined to be avitriolic contest between defendant and judge, and McGill wouldstand poised to skewer whatever defense Mumia could muster. Jacksonkept pleading with Sabo: "I would request that either additional orother counsel be provided as backup for Mr. Jamal I would notfeel comfortable being Mr. Jamal's backup counsel. Most respectfully,I would like the record to show as well that I would refuse tobe backup counsel."

Jackson had become emboldened without realizing it. It was nothis prerogative to refuse the assignment at this late stage of the proceedings.Jackson shifted the focus slightly, suggesting that the judgewould be dooming the legitimacy of the trial from the very start if hedidn't cut him loose. "I am suggesting that without due process YourHonor is requiring me to perform a function I have never performedin a matter where a man's life is at risk. ... What I'm saying, YourHonor, is that I have never, never, since I have been practicing law,been backup counsel, and I am saying that I do not know how Iwould function and I feel uncomfortable that indeed I might be ineffective."

Sabo repeated again that it was no big deal to be backup counsel.Jackson would have to grit his teeth and endure an unpleasant duty.Sabo's motives were unstated but transparent: he wanted the trial tomove at a rocket pace, and Jackson was expected to use his role asbackup counsel to keep Mumia in line to accomplish that goal. Moreout of spite than anything else, Jackson took Judge Sabo's remarks toheart. During the period of time that virtually all competent triallawyers dedicate themselves to preparing for trial, Jackson had donenothing on Mumia's behalf-or as he put it years later, "I just satback with my hands folded. I wasn't doing him any good."

***

In early June, pretrial hearings began. The issues to be resolvedwere routine for a busy criminal justice system. Jackson had filedmotions to suppress evidence-identification evidence, physical evi-dence, and, of course, evidence of Mumia's own alleged statements.Hearings were scheduled to determine whether those items of evidenceshould be suppressed-that is, disallowed for use at trial. The hearingswere really pro forma-actually, an exercise in futility, because motionsto suppress evidence are rarely granted, notwithstanding the falsebut alluring picture foisted upon a gullible public of judges allowingbrutal murderers to go free on trivial technicalities.

Acting as his own lawyer, Mumia questioned witnesses at the pretrialhearings with surprising deftness. He stumbled on occasion, butso do the most seasoned trial lawyers. He certainly performed betterthan the judge and prosecutor expected. McGill called him the"smartest" defendant he had ever prosecuted. Mumia's most impressivework as a lay lawyer came about during his cross-examination ofCynthia White and Robert Chobert, two eyewitnesses who the prosecutioncalled to testify at the pretrial hearings to substantiate thattheir identifications were legally proper. Although constantly interruptedby objections, Mumia kept his focus, and his cool, as he methodicallyexposed discrepancies in their testimony. Later, Mumia'scross-examinations of White and Chobert would be the template forthe trial cross-examinations.

But it wouldn't be Mumia doing the questioning in front of thejury. McGill and Judge Sabo would see to that.

Pretrial publicity and race are the wild cards in the criminaljustice game. Each affects the outlook of potential jurors, andthus each alters how the trial evidence will be received and weighed.The outcome in the battle over whose good-versus-evil narrative willprevail with the jury may be largely determined before the first wordsof testimony are even spoken.

When pretrial publicity focuses on the killing of a white policeofficer by a black radical, especially one associated in the public mindwith a particularly misunderstood and maligned black group likeMOVE, the judicial climate is poisoned against the defense right fromthe outset. Judge Ribner's observation that Jackson had a "big" caseon his hands that would have "explosive tendencies in this community"was best interpreted as a warning.

While Officer Faulkner's death made the front pages of the afternoonpapers on December 9, 1981, it was Mumia's ideology andpolitical activities that gave the story its particular intrigue and bite.The Philadelphia Inquirer headlined: "Jamal: An eloquent activist notafraid to raise his voice." The Philadelphia Daily News was quick topoint out that Mumia "... wears his hair in dreadlocks and was associatedwith several black activist causes .... [H]e was a leader of thelocal Black Panther Party while still a teenager." The media gravitatedtoward a particular remark by Mumia, made when he was an ebullientfifteen-year-old member of the Black Panther Party-"Black peopleare facing the reality that the Black Panther Party has been facing:political power grows out of the barrel of a gun."

To many middle-class whites in Philadelphia, Mumia's involvementin the Black Panther Party was of a piece with his sympathiesfor MOVE. Media profiles of Mumia lumped MOVE in with histeenage membership in the Black Panther Party, dodging discussionof the details of either organization or of Mumia's particular involvementin them. It was enough simply to mention the two organizations,allowing them to intersect in the personage of the arrested journalistso as to propagate an alluring portrait of a dangerous black radicalfully capable of attacking a foot soldier of the status quo.

Inevitably, therefore, the killing and the arrest would be seenthrough the prism of Philadelphia's racial polarization. One PhiladelphiaInquirer commentator stated that "radio talk shows were full ofpeople calling in to say exactly what ought to be done about the killingof Police Officer Daniel Faulkner on the Locust Street strip in theearly hours of Wednesday morning. Some of them, predictably, wantto lynch the man who calls himself Mumia Abu-Jamal as soon as herecovers from the bullet wound placed in his gut by the dying cop."

At the height of the news blitz Philadelphia Bulletin columnistClaude Lewis took his fellow journalists to task for "straying fromtheir purported posture of 'objectivity.' " Wrote Lewis: "They repeatedlyattributed to Abu-Jamal a penchant for radicalism and militancy.Their characterizations sparkled with prejudicial passion, reducing inthe public mind any possibility of innocence on the part of the suspect."Guilt or innocence was no longer the issue within the publicdiscourse. It was all about explication, penetrating the inner meaningof the hideous crime. Mumia's radical politics, and Philadelphia's lingeringtorment over MOVE, were more than the backdrop to a crimestory; they bestowed upon the entire affair a collective psychologicalanchor, as if Faulkner's death was the fruition of all that had comebefore in Philadelphia's history of race relations.

What was up for grabs in the approaching trial was whether thesethings amounted to an explanation for Mumia's otherwise inexplicableact of murder, or to an explanation for why the police and the courtsystem was hell-bent on securing a conviction and death sentence,regardless of his actual guilt. Either the police were good and Mumiawas evil, or vice versa.

McGill, for his part, understood immediately the death potentialof these ingredients in the case. Within weeks of the crime, he hadcaptured within his own mind an image of who this defendant was,and he began cultivating a story line that would infuse the killing withan emotionally charged meaning for his specially selected jury. Itwould not be difficult to fashion a good-versus-evil drama with MumiaAbu-Jamal wearing the proverbial black hat.

***

After three months on the case, Jackson had yet to penetrate beneaththe surface of his case. As each day passed, he was increasingthe likelihood that he would relegate himself to a reactive role in thetrial, desperately trying to hold off the evidentiary onslaught by ahighly aggressive and skilled prosecutor. He had not talked with anywitnesses; he had consulted with no experts concerning the ballisticsand medical evidence; nor had he even developed a plan on how toprepare an attack on the prosecution's case. He was far from graspingthe defense's emotional core of the case.

As a black man, however, Jackson knew all too well the toxiceffects of racism on the trial process. No set of advocacy skills cancleanse a trial atmosphere already polluted with racism. He first raisedthe issue of race on March 18, less than three months before the startof jury selection. He wanted the court to authorize the distributionof a jury questionnaire to those people who would be receiving a jurysummons for possible service on the case of Commonwealth v. WesleyCook, aka Mumia Abu-Jamal. Jury questionnaires are not uncommonin capital cases-they are routine III many states-as they help inselecting an impartial jury. Jackson wanted the distribution of questionnairesto help in stopping the prosecution from eliminating blacksfrom the jury pool. He had complained to courthouse journalists thatthe prosecutors in Philadelphia were notorious for "whitewashing" thejuries, especially in death penalty cases.

"It has been the custom and the tradition of the district attorney'soffice to strike each and every black juror that comes up peremptorily,"Jackson argued to Ribner. He was referring to the prosecution's useof peremptory strikes against prospective jurors, an allotment of challengesfor which no reason need be given. "That has been my experiencesince I have been practicing law, as well as the experience ofthe defense bar; the majority of the defense bar knows that that occurs."

McGill didn't like what he was hearing. Slouched in his chairquietly twirling the edge of his mustache, he jumped abruptly out ofhis seat once Jackson raised the specter that race would playa role inthe litigation. "Excuse me, Your Honor-I don't want to interrupt,but I want to make an objection."

Judge Ribner, reclining in his high-backed leather chair, knewexactly what McGill was going to say. "You are going to categoricallydeny that?" the judge asked incredulously.

Jackson, of course, was right. Defense lawyers and prosecutors areacutely sensitive to race, and that sensitivity gets funneled into strategiesover jury selection. But Jackson's accusations were not based onhard evidence, only anecdotal data that defense attorneys across thenation store daily in their collective memory. What Jackson didn'tknow was that Philadelphia prosecutors were actually trained to racesanitizethe jury in order to maximize the chances of securing a conviction.

Sadly, judges are often not sensitive to the issue of race, taking onthe narrowest understanding of how race and racism come into playin a criminal trial. They routinely balk at the idea that a murdercase could have racial overtones unless the alleged killer openly declareshis motive to be racial. Judge Ribner, in this respect, was a typicalcriminal court judge. Jackson's concern over the exclusion of blacksfrom the jury did not resonate with the judge, which is why the judgewas not inclined to use public funds to distribute a questionnaire toferret out latent racial attitudes and prejudices.

"This is a murder case," Ribner declared, now leaning forwardand chopping the air with both hands. "I haven't seen any evidencethat anybody has turned this into a racial incident."

Jackson understood that white judges rarely appreciate the influenceof race in the criminal process. He tried, nonetheless, to explainthat race seeps into the process more insidiously, particularly withjurors harboring preconceptions, stereotypes, and fears that undercuta black defendant's ability to defend against charges of killing a whiteperson. Judge Ribner listened, but didn't care enough to understand.He was more concerned with the budget. As Judge Ribner put it: "It'snever been done before, Mr. Jackson. At any rate, we're not going topay for that. The county is not going to pay for that."

***

Until 1986, the judiciary was simply indifferent to the widespreadpractice of excluding minorities from criminal juries. That year theSupreme Court in a case called Batson v. Kentucky erected a threetieredprocess for examining whether a prosecutor is improperly excludingminorities from a jury. [i] First, a defendant must challenge aprosecutor's exclusion of a juror with a plausible claim that race consciousnessis playing a role. If a judge agrees that race might be playinga role, then the prosecutor must provide "race-neutral reasons" for theperemptory strikes. The third step permits the defendant to show thatthe race-neutral reasons are but a pretext for race-conscious selectionmethods (usually with proof that a minority is eliminated when awhite, with similar characteristics, is not).

Batson was a step in the right direction, but it in no way remediedthe problem. Judges too often rubber-stamp prosecutorial explanationsfor striking blacks, even when those explanations are utterly preposterous.For example, in a 1987 Georgia case, the prosecutor used allten of his peremptory strikes to remove all ten blacks from the jurypanel. When the prosecutor was called upon to provide a race-neutralexplanation for one of his strikes as required by Batson, he explainedthat one juror looked as "dumb as a fence post." For another blackprospective juror, the prosecutor justified the strike because he "resembledthe defendant." The judge found such explanations sufficient. [1] Another Georgia prosecutor justified an exclusion of a black prospectivejuror because she worked in a video store and therefore wouldnot be "good with people." The trial judge found this explanationacceptable. [2] An Alabama prosecutor, with the trial court's imprimatur,justified his strikes of several blacks from a jury panel because theywere affiliated with Alabama State University-a predominantly blackinstitution. [3] In one instance, the court found the prosecutor kept achart of the prospective jurors with the following categories: "strong,""medium," "weak," and "black." The prosecutor struck every blackperson from the panel, with the endorsement of the Alabama courts. [4]A Florida prosecutor in a death case eliminated ten black jurors fromthe panel, explaining that they were "inappropriately dressed," andwith respect to one prospective juror, claiming he wore "pointy NewYork shoes." This prosecutor rejected a black woman because she wasunemployed, but had accepted an unemployed white woman. Thetrial judge found no problem with these explanations. [5]

***

Evidence confirming Jackson's experiential intuition that race consciousnessplayed a decisive role in jury selection by Philadelphia prosecutorscame in the form of a videotape that surfaced during a 1997election campaign for the office of district attorney in Philadelphia.This videotape was prepared ten years earlier by the Philadelphia districtattorney's office expressly for the purpose of training prosecutorsin the craft of race-conscious jury selection. The videotape shows asenior prosecutor named Jack McMahon standing before a crowd ofyoung assistant district attorneys eager to learn how to be trial prosecutors.This training videotape was made under the auspices of thendistrict attorney Ronald Castille. Castille now sits on the PennsylvaniaSupreme Court, and he had refused to recuse himself from consideringMumia's second round of appeals in 1998, even though the issue ofrace-based jury selection in the Philadelphia district attorney's officewould be a major point of contention.

In the training session, McMahon, a colleague and contemporaryof Joe McGill, appropriately emphasized that "jury selection is themost important part of the trial." The most well-fashioned trial strategyis for naught if the audience is not receptive to the advocate'smessage. McMahon and the other senior prosecutors in the districtattorney's office understood quite well that, in a city with a history ofracial tensions and Rizzo-style brutality, a case built upon law enforcementtestimony is not as well received by an audience of African-Americans as it is by an audience of Caucasians. "The blacks from thelow-income areas are less likely to convict," McMahon asserts on thevideotape. "There's a resentment for law enforcement and a resentmentfor authority." Themes of law and order sell better with middleclasswhites, McMahon was preaching; and they are aroused to angermuch more readily in a case of black-on-white crime, particularlywhere the crime is the killing of a white police officer. The key tosuccess, McMahon taught his young audience with shocking bluntness,is keeping blacks off the jury. This was no easy task in a citywith a population consisting of 40 percent African-Americans.

"People from Mayfair are good," McMahon notes on the videotape,referring to a white neighborhood, "and people fromThirty-third and Diamond [a poor black community] stink. ... Youdon't want any jurors from Thirty-third and Diamond." He reinforcesthe message with the warning that "there's the blacks fromthe low-income areas ... you don't want those people on your jury,let's face it." Later in the videotape, McMahon says: "In my experience,black women, young black women, are very bad"; and "Youknow, in selecting blacks, you don't want the real educated ones .... "

McMahon further advocated keeping a running tally of the racialcomposition of the jury pool, an irrefutable indication that race wouldplay a key role in the exercise of peremptory challenges. "Anotherthing to do, little tips, too, when a jury comes in the room, the fortypeople come in the room, count them. Count the blacks and whites.You want to know at every point in that case where you are. In otherwords, the forty come in-you'll never get it just right. You don'twant to look there or go, 'Is there a black back there?' "

Keeping tabs on the race of the jury pool was so important to thedistrict attorney's office that McMahon advised young prosecutors toinvent reasons to leave the courtroom, if necessary, to ascertain theracial composition of upcoming prospective jurors. "If you lose trackor you're not sure of what's going on, you can always take a recess,"McMahon advises. "Because a lot of times what they do is they'll likehave the next group ... sitting right out there in order. So you cansay, 'Judge, I have to go to the bathroom.' You can go out and seewhat's left and check out what's left." [ii]

No lesson on race-based jury selection is complete without a tutorialon how to avoid the strictures of Batson. "In the future, we'regoing to have to be aware of Batson, and the best way to avoid anyproblems with it is to protect yourself," McMahon cautions. "And myadvice would be in that situation is when you do have a black juror,you question them at length. And on this little sheet that you have,mark something down that you can articulate later if something happens....So if-let's say you strike three blacks to start with, the firstthree people. And then it's like the defense attorney makes an objectionsaying that you're striking blacks. Well, you're not going to beable to go back and say, oh-and make up something about why youdid it. Write it down right then and there .... And then you can say,'Well, the woman had a kid about the same age as the defendant andI thought she'd be sympathetic to him' or 'She's unemployed and Ijust don't like unemployed people .... ' So sometimes under that lineyou may want to ask more questions of those people so it gives youmore ammunition to make an articulable reason as to why you arestriking them, not for race."

Perhaps most brazen is McMahon's explicit instruction to disregardthe prosecutor's duty to be fair. The U.S. Supreme Court haslong made clear that the State's "interest ... in a criminal prosecutionis not that it shall win a case, but that justice shall be done .... It isas much [the prosecutor's] duty to refrain from improper methodscalculated to produce a wrongful conviction as it is to use every legitimatemeans to bring about a just one." [6] The Court has also clearlystated that "the only legitimate interest [the State] could possibly havein the exercise of its peremptory challenges is securing a fair and impartialjury .... The State's interest in every trial is to see that theproceedings are carried out in a fair, impartial, and nondiscriminatorymanner." [7]

McMahon has this to say about securing a fair and impartial jury:"The case law says that the object of getting a jury is to get-I wroteit down. I looked in the cases. I had to look this up because I didn'tknow this was the purpose of a jury. The law says, 'Voir dire is to geta competent, fair, and impartial jury.' Well, that's ridiculous. You're nottrying to get that."

Indeed, McMahon suggested to the young prosecutors that theywould lose their jobs if they attempted to follow the law and choosefair jurors: "And if you go in there and anyone of you think you'regoing to be some noble civil libertarian and try to get jurors, 'Well,he says he can be fair; I'll go with him,' that's ridiculous. You'll loseand you'll be out of the office; you'll be doing corporate law. Becausethat's what will happen. You're there to win .... And the only wayyou're going to do your best is to get jurors that are as unfair and morelikely to convict than anybody else in that room." [iii]

***

Exacerbating the race problem in jury selection is the fact that, ina capital case, jurors who are resolutely opposed to the death penaltyare not eligible to serve on a capital case. The process of eliminatingfrom a jury pool those persons opposed to the death penalty iscalled death-qualifying a jury (or Witherspooning, a shorthand expressionderived from the U.S. Supreme Court case Witherspoon v.Illinois). Death-qualifying a jury is a nightmare for defendants. Aftera jury pool has undergone a Witherspooning process, those remainingtend to be more of the law-and-order types, more prone to believeauthority figures such as police officers, and more prone to convict.Criminologists virtually all agree that death-qualifying a jury rendersit death-penalty prone. People opposed to the death penalty who areineligible to sit on a capital case tend to be more liberal, more skepticalof authority, and more sensitive to human frailties. The Witherspooningprocess also results in a bias favoring white juries becausea significantly higher percentage of blacks oppose the death penaltycompared to the general public. Judges are not oblivious to the distortingeffects of Witherspoon. Judge Savitt, a Philadelphia judge,noted that "the tendency has been for prosecutors to death-qualifythe jury even when they have no intention to seek the death penalty,because they know that a death-qualified jury is a guilt-pronejury."

***

An experienced death penalty prosecutor, McGill extracted whathe wanted out of Witherspoon, largely without resistance from Jacksonand Mumia, neither of whom had the experience and skill to counterMcGill's maneuvering. At the end of the juty selection process, morethan half of the blacks in the juty pool were immediately disqualifiedbecause they said that they could never vote for the death penalty.The beauty of it, for McGill, was that he wouldn't have to use hislimited peremptory challenges on these undesirables. Frustrated, Jacksonwent on a radio program and complained about the racial effectsof death-qualifying the jury. He later stated, in court testimony in1995: "Trying cases in city hall, I know most DAs, in most homicidecases, will get rid of as many blacks as they possibly can, first throughthe death qualification and then through peremptory strikes."

As the selection process began, both Jackson and McGill, each inhis own way, had to confront the inevitable fact that the citizenry inPhiladelphia was acutely aware of the Faulkner shooting. With thecourtroom filled with prospective jurors, Judge Sabo had to weed outthose who had become too saturated with media accounts of the crimeand the case generally. "Does anyone know anything about that incident,whether through television, radio, or the news media, the press?"the judge asked the assembled group. "If anyone knows anything aboutthis incident, would you please rise and give your name to the court officer."Judge Sabo immediately realized that he should have phrased thequestion in the negative, because nearly everyone in the audience hadstood up. "Since most of you have risen, I think it may be easier if yousit down and I rephrase the question. Is there anyone on this panel whodoes not know anything or has not read or heard or seen anything ontelevision about this incident?" No one moved. Judge Sabo aptly observed,"Everybody here has read about him."

***

"Good morning, ma'am, my name is Mumia Abu-Jamal."

Juror number eighty-nine, an elderly black woman named JennieDawley, viewed the tall defendant with the musical voice much as theother people on the jury selection panel did-as an oddity, not somuch because of his dreadlocked hairstyle bur because he was thedefendant. The defendant is supposed to sit quietly at the defense tablewhile his lawyer does all of the talking. The prospective jurors hadnot expected that Mumia would be handling his own case. It tooktime for them to come to grips with the fact that Mumia would bequestioning them directly during the voir dire-a process of interactingwith prospective jurors to assist the trial participants in selectingwhich of them to eliminate from service.

Although she had lived in southwest Philadelphia for over twentyyears when she was summoned for jury duty, Dawley had never servedbefore. She told Mumia that she was a retired common laborer whohad no fixed opinion about what had happened on December 9. Mumialiked her. She seemed to be the kind of authentic person that hecould relate to.

"Is there anything about how I look to you that offends you orturns you off?" Mumia asked.

"No, you look like people to me, that's all," Dawley answered ina heartbeat.

Mumia detected a certain feistiness in Dawley, a willingness tohold her ground. He asked her what her husband had done for aliving. "Well," she said with a nod, "let's not bring him in. Okay. Letit rest like that. He's not here." She stood up to him, gently but firmly.Mumia liked that as well. She would stand up to the white folks hellbenton coming back with a guilty verdict, Mumia figured.

When McGill asked Dawley if she had any moral, religious, orphilosophical scruples which would prevent her from sitting in judgmentof another human being, Dawley put it simply: "No, I'm justplain old me."

After questioning scores of other people before her, Mumia knewthat Dawley had to be on this jury. He didn't want to signal to McGillhis strong feelings about her, so he took his time in letting the judgeknow that she was acceptable. He asked Judge Sabo for permission toask some more questions. He probed a little more about her attituderegarding the notion that a defendant has no obligation to present adefense-a probing that masked his desire to select her.

It worked. McGill refrained from striking her with a peremptorychallenge, primarily because he viewed her as elderly (and thus, likelyto be hostile to radical politics) and would probably be ill at ease withMumia's supposed arrogance. "You have been selected as juror numberone," Judge Sabo informed Dawley. Mumia and the prosecutor, forthe first and last time, agreed on something. But even that would notlast long.

As pleased as Mumia was with Dawley, he could not have beenmore distressed about a juror than he was with Edward Courchain. Afiftyish white man, Courchain never disguised his inability to keep anopen mind, admitting that he had developed a bias for the prosecution.He candidly disclosed to McGill that he could not accord Mumiaa fair trial and that he would find it "a little difficult" to follow thelaw as given by the court. As the questioning progressed, it becameevident that Courchain's inability to be fair to both sides resulted fromhis exposure to the media coverage of the case. He told McGill thathe was "swayed a little bit" by the newspaper and television coverage.

Jackson had a single goal as he moved to the front of the defensetable: nail down Courchain's answers about his partiality. "Mr. Courchain,you've indicated that you may have some difficulty serving inthis case; is that correct?"

Courchain bobbed his head a few times. "That's right."

Jackson gently probed further. "And you further indicated thatthis difficulty arises from your exposure to the news media; is thatcorrect?"

Jackson, sensing Courchain's uneasiness, put to him the mostpointed questions that could be asked of a prospective juror: "Now,as difficult as it may be to answer my question, and of course thequestions of Mr. McGill, we unfortunately have to back you to thewall to get an answer from you. So, please, consider that when I'masking you these questions. What we need to do is to determine yourqualifications as a juror. The questions I'm asking you-although I know you can't predict with any absolute certainty what you're goingto do in the future-we need to know now in your best judgment,whether or not you could be objective in this matter, stay in themiddle, don't lean towards the prosecution, don't lean towards thedefense, whether or not you could objectively determine the facts inthis case?"

"Do you want an honest opinion?" Courchain asked.

"Yes, sir," Jackson responded.

"No."

Jackson was taken aback by the bluntness of the answer, but happywith it nonetheless. He couldn't resist asking Courchain to confirmthe answer. "You cannot do that?"

"No."

Jackson could have stopped at that point. He had enough to justifyremoving Courchain, but he sensed that he could secure moreanswers to solidify the motion that he would soon make to removethis prospective juror as unfit to serve. "Sir, if I were to tell you thatthe law requires that if you were to serve as a juror you are to set thataside, could you do that?"

"I would try, but I don't know. Consciously, I don't know."

" 'Consciously -- ' "Jackson parroted.

"Unconsciously, it would still be there," Courchain explained.

"I understand that. And I don't mean to argue with you, sir. I'mjust trying to get it as best as I possibly can, because you also saidthat you didn't think that you could be fair to both sides. Did I hearyou correctly?"

Courchain became testy over the dissection of his words. "I saidunconsciously I don't think I could be fair to both sides."

"I don't think I could be fair to both sides"-an answer like thatpretty much assures a criminal defense lawyer that a prospective jurorwill get knocked off the panel on a cause challenge (a challenge basedupon bias, favoritism, or other impediment to jury service). Jacksonmoved for Courchain's removal. "Denied," Judge Sabo ruled.

Perplexed by the ruling, Jackson realized he was now in a bind.He had no more peremptory challenges left to remove Courchain. Heargued further with the judge, explaining that the law mandated thatCourchain be removed. Judge Sabo turned to Courchain and askedhim some more questions about whether he could be fair. All he couldsay was that he "would try." Jackson moved for his removal again."Denied." Courchain was there to stay.

The only saving grace was that Courchain was an alternate andnot on the actual panel of twelve. Not yet, anyway.

***

There is a reason why Jackson, rather than Mumia, was questioningCourchain. At the start of the third day of jury selection, Judge Saboprecipitously ruled that Mumia had to turn the jury questioning overto Jackson, despite the fact that he was doing very well in bringingout the feelings and attitudes of the prospective jurors. The desire tosilence Mumia was disclosed to the press the day before. McGill toldreporters that he would ask Judge Sabo to stop Mumia from furtherquestioning the panel, claiming that several prospective jurors left thecourtroom saying that they were too upset and afraid to serve.

When reporters found Jackson outside the courthouse, they askedhim for his reaction to McGill's anticipated maneuver. Appalled thatMcGill was playing his hand in the court of public opinion, Jacksonsaid that Mumia was doing a better job than anyone expected. "Theprosecutor is just trying to minimize the effectiveness that Mumia ishaving in bringing out the true feelings of the jurors," Jackson said."Legally, he's done a more than adequate job, and there's no goodreason to stop him." Reporters observing the proceedings noted thatMumia's "demeanor during the selection process has been subdued."

On the following day, McGill let the morning session pass withoutmaking a move. Like any good lawyer, he was waiting for the rightmoment-a moment that everyone knew would come. In the afternoon,he found the prospective juror he thought would give him theanswers he needed. The questioning of juror number 360 had justended when McGill stood up to ask some follow-up questions, eventhough he was not going to challenge the defense's request for herremoval.

McGill asked, "Before you answered these questions here andhaving Mr. Jamal ask you questions, that makes you feel very, veryunsettled, doesn't it?" Juror number 360, a bookkeeper who exhibitednervousness from the moment she underwent questioning, answered,"Yes, it does."

"k a matter of fact, it scares you, doesn't it?" McGill continued,putting words in her mouth, an effective technique in jury selectionwhen used sparingly to accomplish a clearly defined goal.

"Yes. It scares me to death."

That's what McGill needed, even though it remained unclear whatthe "it" was that scared this particular juror. Was it Mumia in particular,or was it having to sit for questioning on a death penalty casegenerally? McGill knew that in the skewed universe of Judge Sabo'scourtroom, he didn't need to tease out such nuances. If McGill insistedthat something be done, chances were that Judge Sabo wouldaccommodate him.

McGill asked Judge Sabo to entertain his motion to reconfigurethe jury selection process so that Mumia would no longer questionprospective jurors. Mumia expected this maneuver before the trial evenbegan. He knew that the daily practitioners in the criminal justicesystem expect to see a fumbling effort by an untutored criminal defendant.They don't bargain for an articulate and probing explorationby a defendant that actually induces people to speak their mind.

The art of jury selection is simple, but few lawyers know how to doit, because the process of legal education actually throttles the ability tocommunicate spontaneously and authentically with real people. Theyinherit from law professors a liking for word games and rigid logic, andthey develop a discomfort with the free-flowing give-and-take of genuinecommunication. Consequently, most lawyers ask mind-numbingquestions, peppered with multisyllabic, sterile words delivered stiffiyhardlyan invitation to openness and honesty. They are too often afraidof relinquishing control and letting people speak their mind, afraid thatsomeone on the panel will say something negative or controversial.Their fears cause them unwittingly to stifle those human beings fromwhom it is most important to hear, oblivious to the fact that their opennessand honesty is a gift. It is a gift because when it comes time for deliberations,jurors will be in a back room speaking their mind, and thetrial lawyer is not invited, thus negating his power to diminish the impactof negative remarks and unstated hostility that might affect theoutcome of the case. It's best to hear what a person has to say about variousissues in the case during jury selection, where the damaging remarksand clues to hostile attitudes are made visible. At least during the juryselection process, the trial lawyer has some ability to keep the hostileones out of the deliberations.

Mumia had always been a natural and fearless communicator, andhe had honed that craft during his years as a radio commentatorand journalist. But more importantly, he loved people and was unafraidto be vulnerable. As a result, he was open to hearing the goodand the bad. He wanted to know if the prospective jurors didn't likehis hair, if they were afraid of him, if they came into the city hallbuilding already feeling that he was probably a cop killer. His ownwillingness to be open and vulnerable induced communicative reciprocityin many of those whom he questioned.

McGill didn't like that, so he wanted Judge Sabo to do somethingto put a stop to it.

Judge Sabo did not disappoint. Although McGill wanted him totake over the questioning, Judge Sabo preferred not to. He offered acompromise: he proposed that Jackson take over the questioning. Mumiawasn't going for it, seeing it as the first step toward stripping himcompletely of his right to represent himself. "I object totally. I objecttotally to that so-called compromise."

"Well, that's fine, then. I'll take over the voir dire," the judgethreatened.

"I'm not surprised. I said you would do it yesterday," Mumiaretorted.

"The rules allow me to do it, and I will do it in the interest ofjustice."

"That's not in the interest of justice; it's in the interest of a conviction,"Mumia protested.

Jackson thought it was shortsighted of Mumia to stand on principleat a time like this and reject the compromise. It would be disastrousto allow Judge Sabo-or any judge, for that matter-toconduct the questioning, because he would engage in purely perfunctoryinquiries without the keen ear of an advocate. Jury selection isfar too important to relinquish to judges. If judges could conduct aneffective voir dire, they wouldn't be judges; they would be trial lawyers.Jackson explained to Mumia that he could do the questioningfar more skillfully than the judge and that he had no interest in takingover the case. He promised Mumia that he would retreat into thebackup role once the jury selection was over. "Hey, I know you don'twant it," he whispered to Mumia. "I don't want to be in this position,either; but in my opinion it would be better for me to participate inthe voir dire than to leave it to him [gesturing toward the bench]."Mumia reflected for a moment, a glacial anger welling inside him. Hethen waved his hand to indicate that Jackson should take over. Jacksonhandled the questioning for the four remaining days of jury selection.

When the selection process was over, a mostly white and mostlymale panel was selected (nine white, eight male). Four of the twelvewere retired, two were unemployed, and, with one exception, the othersblue-collar laborers. The Philadelphia Inquirer made a point innoting that "prosecutor Joseph McGill used most of his twenty peremptorychallenges to turn down blacks and younger people." Froma statistical point of view, black jurors faced odds of being struck byMcGill that were over sixteen times greater than for other jurors.

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Notes:

i. To be sure, a lawyer for either side of a dispute may challenge his adversary's jury selectionprocess under Batson.

ii. This practice of tallying the race of each prospective juror was not only captured on videotape.it was also noted by several courts. In one case, the former chief of the Homicide Unit in thePhiladelphia districr anorney's office was caughr red-handed. A federal judge nored: "The recorddemonstrares conclusively rhar, ar each trial, the prosecuror [the chief of the Homicide Unir]kept careful records of rhe race of each prospecrive juror, and a running tally of how manypersons of each race remained on rhe venire for possible selecrion." In another case, a federalmagistrare found rhar a prosecutor's jury selecrion notes in a case tried in November 1981"provide a conremporaneous chronicle of the spurious srrikes for each black juror." Thar prosecutor,rhe magistrate further observed, "mainrained ... painsraking nores which revealed uponexaminarion a running rabularion of the number of blacks left on the jury after each challengewas exercised."

iii. McGill's race-conscious jury selection methods were, at the time of Mumia's trial, not illegal,which only underscores the fact that he engaged in the nefarious practice. The PennsylvaniaSupreme Court, in Commonwealth v. Henderson, 497 Pa. 23, 29 (1979), stated:

Put another way, it is not constitutional error for a prosecutor to challenge a black jurorfor the reason that the prosecutor believes -- validly or invalidly -- that a black venireman,because of the facts of the case, is less likely to be impartial than a white venireman.Put still more reductively, the race, creed, national origin, sex or other similar characteristicsof a venireman may be proper comideratiom in exercising peremptory challengeswhen issues relevant to these qualities are present in the case.